PAUL HOFFMAN: How failure to vote affects constitutional democracy under SA’s law

Differing interpretations have been given to the low voter turnout in the local government elections held on November 1. Some divine anger, others apathy; many motivations for the lowest turnout recorded since 1994 fall somewhere between these poles. Bad weather, good weather, a long weekend, Covid-19 and slow moving queues all feature in the analysis.

The underlying point that needs to be made is that our hard-won democracy is precious and ought not to be trifled with by those who do not appreciate the centrality of the rule of law and supremacy of the constitution in our national order. It is the constitution that is the guarantor of our freedom from the shackles of apartheid and our liberation from politicians, who are not bound to act in a manner that is consistent with the values, principles and precepts of the constitution.

The voting public is entitled to stay away from the voting booths, but does so at its own peril. The saving grace of the nation is the fealty to constitutionalism that is enforceable against all who hold political office and binds those who work in the public service — be it at local, provincial or national levels or in the other organs of state and in the state-owned enterprises.

Those who choose not to vote should ponder the effect their failure to express their political rights and choices has on constitutional democracy under the rule of law in SA.

The speculations and prognostications of the political scientists will not vary as widely as they currently do if the stayaway is converted into participation in democracy, not only at election time but also by way of active citizenship. The Chapter Nine Institutions have been created to bed down constitutionalism in SA; their services are available for free to anyone who feels that their human rights are being threatened or infringed.

Those who witness maladministration in the affairs of state or the public administration are entitled, for free, to complain to the public protector, who must investigate, report and take appropriate remedial action. This feature of the constitution ought to make service delivery protests, violent outbursts and the public disorder witnessed in KwaZulu-Natal and Gauteng in July 2021 unnecessary. 

Not enough has been done to bed down the conversion of the SA population into active citizens who do participate in their governance. The mentality of subjects in an authoritarian regime, the default position under apartheid, lingers on in the hearts and minds of those who should be paying attention to the national anthem by “living and striving for freedom”.

A huge public education drive is needed to stimulate public participation in the not-so-new democratic order in SA. Government always makes the excuse of “capacity constraints” and a shortage of funding for work of this nature. Those in government who are in fact striving to put the national democratic revolution in place are not motivated to promote constitutionalism. This contrary attitude is due to the fact that the national democratic revolution espoused by the tripartite alliance of ANC, SA Communist Party and Cosatu is not in any way, shape or form aligned to the achievement of the values of a multiparty constitutional democracy under the rule of law.

The EFF is also, much more muscularly, on a revolutionary trajectory that is aimed at hegemony. The comprehensive control of all levers of power in society in a one-party communist-inspired state is what motivates revolutionaries in SA. Constitutional notions such as the separation of powers, an independent media and judiciary, checks and balances on the exercise of power and multiparty elections that are free and fair will not be features of the political landscape in SA if these revolutionary urges are allowed to prevail.

The cadres of the ANC-led alliance and EFF are the most likely bedfellows in any coalitions that may be formed in hung municipalities now and in hung provinces in 2024. Opposition parties that are tempted to form coalitions that include these two formations ought to bear in mind that the ideology informing their thinking, policy-making and activities is not one that is consistent with that which was envisaged in the constitution of 1996.

It is true that the EFF is more radical and more strident in its demands and positions, while the ANC prefers to exercise what it calls “dexterity in tact” in the implementation of its revolutionary agenda, which is pursued with careful attention to what it calls the “balance of forces” in society from time to time. The attitude of all of the revolutionaries is to regard the constitution as a “beachhead” on the path to the revolution, rather than as the binding product of a carefully negotiated national accord that reflects the will of the people of SA.

When Cyril Ramaphosa was nominated by the ANC for the presidency of SA in February 2018 the two members of the National Assembly who did so, ANC MP Patrick Maesela, who nominated Ramaphosa for president from the floor, which was seconded by ANC MP Joan Fubbs, emphasised that their nominee is a revolutionary.

While the voting public may be taken in by the sleight of hand used “with dexterity in tact” by the ANC, the other political parties active in SA should be under no illusions about the true agenda of the ANC (and indeed the EFF). Entering into marriages of convenience with them for the sake of forming coalitions at local level has not worked in the past. There is no realistic prospect that coalitions with them will work in future in the 66 hung local governments around the country in which a majority of votes has not been won by any single party contesting for power.

The fact that the ideology that informs the revolutionaries has not worked anywhere it has been tried in the world (and was abandoned by the USSR in 1989) does not seem to have any effect on the revolutionary thinkers; even the horrific experiences of Zimbabwe, so close to home, leave them unmoved and unshakeable in their ideology. The call by the late Prof Kadar Asmal, a cabinet member in the Mandela and Mbeki presidencies, to abandon the national democratic revolution, unfortunately fell on deaf ears.

Constitutionalism is preferable to a revolution. Active citizens who live and strive to support constitutionalism are needed if it is to prevail over those who prefer a revolutionary future for SA in which freedom will be but a distant memory and a Zimbabwean-type dispensation will cause much misery.

• Hoffman, SC, is a director of Accountability Now.