This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Constitutional Rule in a Participatory Democracy
NATIONAL PARTY PROPOSALS FOR A FUTURE DEMOCRATIC SOUTH AFRICAN CONSTITUTION
BASIC POINTS OF DEPARTURE
The National Party has repeatedly committed itself to the creation of a new constitutional dispensation through negotiation. Such a new dispensation must be based on certain fixed points of departure. A system must be sought which, inter alia.
Ø. ensures that universally accepted values and norms in South Africa are maintained
Ø. is based on universal franchise in a democratic structure of government
Ø. is free from apartheid and discrimination in any form
Ø. is free from domination
Ø. establishes an ordered and orderly society
Ø. makes good government possible
Ø. ensures justice for all
Ø. promotes a market-orientated economy coupled with private initiative and social responsibility
Ø. accommodates the cultural differences in South Africa
Ø. enables all South Africans to share in peace, progress and prosperity.
There are considerable differences of opinion as to the specific constitutional model in which these basic points of departure may best be realised. In order to achieve the best possible result the National Party is striving for
Ø. negotiation at national level in order to reach agreement on the broad structure of government and to establish the position of central, regional and local authorities within that structure
Ø. negotiation at regional level so that the needs, aspirations and problems of the residents of such a region may be properly accommodated and
Ø. negotiation at local level in order to accomplish co-operation and harmony at grassroots level.
A THREE-TIER GOVERNMENT
The National Party proposes a three-tier government in which full legislative and executive functions and authority are conferred on central government and regional and local authorities. Regional and local authorities are therefore not merely administrative extensions of the central government; they are not merely the consequence of decentralised administration. On the contrary, every tier is "government" in its own right, with its own
Ø. elected authority that is responsible to the voters
Ø. legislative and executive power
Ø. tax base.
A three-tier system of government takes account of
Ø. the rich diversity of the population of South Africa, the needs of communities In regional and local context, and the consequent need for self-determination in regional and local context
Ø. the need to bring government as close to the people as possible, so that decisions can be taken at a level where the citizen's position is best understood
Ø. the need for a rationalised and effective state administration.
The question is how the boundaries of regions are to be determined for regional government purposes. It is essential in any event for the present multiplicity of second-tier governments, consisting of four provinces, six self-governing territories and three own affairs administrations, to be simplified and included in a single system of regional government. It Is suggested that the present nine development regions may present a good starting point for negotiation about new regional boundaries. Naturally adjustments to these will have to be considered. The present development regions which may be used as a starting point currently comprise
Region A (Western Cape), Region B (Northern Cape), Region C (Orange Free State and Qwaqwa), Region D (Eastern Cape), Region E (Natal and KwaZulu), Region F (Eastern Transvaal and KaNgwane), Region G (Northern Transvaal, Lebowa and Gazankulu), Region H (the PWV area and KwaNdebele) and Region J (Western Transvaal).
Although the present development regions include the four independent national states (the TBVC states) in terms of agreements for purposes of co-operation regarding regional development, their relationship with a new South Africa will have to be negotiated with each state individually.
As far as local authorities are concerned, municipal boundaries will have to be delimitated on an appropriate geographical basis so as to replace current boundaries based on race. A delimitation authority could handle thistask. A question which requires attention is whether the concepts "municipality" or "city council" should possibly be extended to include the whole of a district (that is, a town together with its rural district).
THE SEPARATION OF POWERS
A clear separation of the legislative, executive and judicial powers is a characteristic of modern democracies. Such separation is accepted as an essential feature of a new dispensation in South Africa.
The separation of powers prevents an over-concentration of power being vested in a specific part of government and contributes to achieving checks and balances. Consequently the constitution must contain arrangements that
Ø. prevent the executive authority from dominating the legislative authority, and vice versa
Ø. confer on Parliament the authority to call the executive to account
Ø. confer on the judicial authority jurisdiction, based on the Constitution and the Charter of Fundamental Rights, to test and set aside Acts of Parliament and actions of the executive.
For the framework sketched above to really satisfy the unique needs of the South African situation, and to conform to our basic points of departure, it is necessary to frame the constitution in such a way that
Ø. a constitutional state is established
Ø. a system Is designed which will ensure the realisation of a participatory democracy.
THE FIRST PILLAR:
A CONSTITUTIONAL STATE
The term rule of law is used in constitutional debates to express the pursuit of justice and a limit on the power of the state.
The National Party accepts the rule of law as the foundation on which such endeavours must be based. However, this term was developed within the distinctive milieu of the Westminster system and an unwritten constitution. The term constitutional state is therefore used to indicate that we are striving for a system that may rightfully be described as "constitutional government": a system in which the constitution and the law are the source of justice, and at the same time serve to curtail the powers of government.
The concept "constitutional state" expresses the view that the constitution of a country should regulate the power of government in such a way that freedom, justice and legal certainty are guaranteed for all.
Thus we are concerned with a constitutionally entrenched legal dispensation involving seven principles:
Ø. The constitution must be the all-embracing criterion and guideline for the state and the citizen. Consequently it will enjoy a higher status than all other law; it may only be amended if special procedures are followed and compliance with its prescriptions will be enforceable by the courts.
Ø. A Charter of Fundamental Rights must be constitutionally protected and legally enforceable. This will equip the citizen to protect himself against unlawful action by government. Effective protection of the fundamental rights of the individual will at the same time offer important protection of the interests of groups and communities.
Ø. An independent judiciary is a cornerstone of the constitutional state. An independent court structure must have the jurisdiction to declare Acts of Parliament and actions of the government null and void if they do not comply in all respects wtlh the criteria of the Constitution and the Charter of Fundamental Rights. The individual must have free access to the courts.
Ø. Organisations and institutions that function in non-political spheres must enjoy the highest possible measure of self-determination in respect of their own fields of interest in the community. Full recognition must be given to their autonomy in this regard.
Ø. Mechanisms must be built in to prevent the abuse of government power and state structures. The office of an independent and objective Ombudsman must be instituted. The Auditor-General, the Public Service Commission and the Reserve Bank must be vested with greater autonomy, and a procedure for the appointment of judges must ensure the objectivity, professionalism and independence of the Bench.
Ø. The Integrity of the constitution must be ensured. The constitution must be protected against infringements. Asystem must be developed that ensures effective and balanced control over the security forces as the instrument for maintaining the constitution at all times.
Ø. An impartial and professional civil service with career security for employees must be ensured and the Commission for Administration must be vested with sufficient authority.
Building these seven principles into the constitution effectively, will ensure that
Ø. the interests of the citizens, as entrenched in the constitution, are respected by government
Ø. the fundamental rights of the individual, including rights exercised In group and community context, are protected against infringement
Ø. the government remains subject to the law, and cannot take arbitrary decisions
Ø. the government will not interfere in fields where there Is no legal authorization for doing so the abuse of power and maladministration are prevented the constitution is maintained.
THE SECOND PILLAR:
By "participatory democracy" is meant that a system of government is developed in which a number of political parties effectively participate and in which power-sharing therefore takes place. This is in contrast to the Westminster system in which one party exclusively enjoys power.
Participatory democracy takes into account the diversity of South African society and the reality of the existence of a multiplicity of socio-economic and cultural interest groups. Such groups do not exist in the community because they have been created or recognised in terms of legislation, but by virtue of the fact that people naturally and voluntarily associate with one another because they have some kind of Interest in common. In its Five Year Action Plan of 1989 the National Party undertook to seek, through negotiation between leaders, a more just and meaningful basis than race and colour on which groups may be defined for purposes of political participation. In the constitutional sphere the political party is the most effective means of furthering the interests of such groups. In other spheres interest groups define themselves in terms of other criteria. The National Party's conviction is that a new constitution should offer the opportunity for every viable political party to play an effective role at local, regional and central government levels.
This concept may be put into effect in two ways:
Ø. First, political power may be divided among various authorities. Most important here is the distribution of power among the different tiers of government. This is normally referred to as the principle of devolution of power.
Functions must be distributed among the different tiers of government in such a way that the constitution confers autonomous authority on every tier, (that is, original and entrenched authority with which the other tiers of government may not interfere). The constitution must therefore stipulate which powers and duties are to be vested in the central government, regional government and municipal or local government. In each case it must be determined which tier of government can perform a particular function in the most appropriate and effective manner. While some functions may as a whole be allocated to one of the three tiers, it will be appropriate to spread other functions among all three tiers so as to allocate to each tier that aspect of a function which can be handled there most effectively in the interest of the community.
Ø. Secondly, an effective say and participation in state power for a number of parties may be brought about.
These principles are elucidated below by outlining the framework of a model.
PARTICIPATORY DEMOCRACY: A POLITICAL MODEL
This exposition presents the framework of a model embodying the above principles. The National Party has already received a mandate from the voters to negotiate a new constitution based on these principles. This particular model is not necessarily a final proposal which cannot be amended. It may be revised as a result of further reflection in the NP and by negotiations and also in the light of the expected reports of the South African Law Commission on fundamental rights and on constitutional models that may be appropriate for the South African situation.
It Is proposed that Parliament should consist of two Houses. Both Houses must adopt legislation.
The First House
The First House is elected proportionally, so that each political party receives a number of seats in accordance with the share of the political support which that party enjoys nationally on the strength of a general election. The electoral system may further be so organised that voters are also given the opportunity to express their preference for specific candidates in particular electoral districts, without the requirement of proportionality being sacrificed.
Legislation will be passed by a simple majority, but will be subject to a weighted majority (eg. two-thirds) in respect of those issues entrenched in the Constitution.
The Second House
A Second House, which is smaller than the First House, is proposed. An equal number of seats in the Second House will be allocated to each region. Each political party which has gained a specified amount of support in the election in the region's legislative body will be allocated an equal number of the seats for that region in the Second House. Thus every democratic party which enjoys a significant amount of support in the region, will be represented in the Second House. This will result In equal representation of both the regions and those political parties with significant support.
The functions of the Second House are to
Ø. deliberate on the bills which are approved by the First House and for which increased majorities are not required and to pass them by a simple majority
Ø. -. deliberate on and pass by a weighted majority legislation which
Ø. -. amends the constitution
Ø. -. relates to the interests of minorities
Ø. -. relates to the interests of regions
Ø. -. is entrenched in the constitution
Ø. -. initiate legislation relating to circumscribed matters and which affects the specific Interests of minorities and regions.
The core of the National Party's proposals is that the executive should not be constituted from one party alone, but from members of a number of the major parties.
Thus a multiparty government (of which Western European coalition-style government is an example) is preferred to a system where the majority party alone forms the executive of government. (The Westminster system usually results in this situation.)
The present constitution excessively concentrates functions and authority In a single person, the State President. Instead, it is proposed that the office of head of state and of government should be vested in a collective body known as the Presidency. The Presidency will consist of the leaders of the three largest parties in the First House. In the event that the three largest parties do not together represent the majority of the voters, the Presidency will be supplemented by as many additional leaders, in order of the size of their party, as may be required to represent a joint majority. A party that qualifies in these terms may however, if It so wishes, abstain from participating.
The chairmanship may rotate among the members on an annual basis.(1) Decisions are taken by consensus. Likewise, a State President may be elected on a rotating basis from the ranks of the Presidency.
The Presidency, by consensus, appoints ministers who form a multiparty Cabinet and who are obliged to carry out the policy of the Presidency.
The two Houses of Parliament may pass a motion of no confidence in the Presidency collectively (but not in individual members), in the Cabinet and in individual Ministers.
It has already been mentioned in the preceding section that provision is made for the representation of the different regions in the Second House of the central Parliament; also, that the present nine development regions may be used as a point of departure for the planning of a regional government dispensation. The composition of such a regional government is suggested as follows:
To ensure participatory democracy and power-sharing for a number of political parties, measures for effective minority protection must also be built In at the second and third levels of government in accordance with the principles already embodied at the first level.
The Legislative Authority
An elected Legislative Council for every region is proposed, in which
Ø. the numerical strength is determined by the size of the voting population
Ø. the representatives are elected from electoral districts within the region on a proportional basis
Ø. indirect nomination of part of the Legislative Authority by third-tier authorities, or possibly by subregions, may also be considered
Ø. decision-making procedures provide for the protection of minority interests and certain circumscribed matters.
The Executive Authority
The Executive Committee of a region may be made up of three to five leaders of those political parties which have a predetermined minimum representation In the Legislative Council, according to the same system as already set out In regard to the Presidency at the first level. The Executive Committee must function collectively as a unit, and each of its members must be responsible for a specific portfolio.
Within regions, the possibility of sub-regions or district authorities for districts with particular interests and cohesion may be provided for as an option.
The National Party proceeds from the following points of departure:
Ø. The basis of the local government system - namely that local government Is a democratically elected, autonomous tier of government, which within Its own area of jurisdiction is in each case vested with legislative, executive and fiscal authority - must be laid down in the constitution and entrenched.
Ø. A national Local Government Act, which must be a product of the (national) constitutional negotiation process, must establish the broad principles and structural framework of local government.
Ø. Following negotiation at local level, a formal agreement or charter must be drawn up for every local authority and promulgated under the Local Government Act, to serve accordingly as the "local constitution" of the local authority concerned.
Participatory Democracy at Local Level
At local government level the term participatory democracy gains a particular meaning. At this level, where people live, work and take their recreation from day to day, it is essential that a framework be created to promote good order and co-operation. It is unfortunately true, however, that this is precisely where the large gap between developed and underdeveloped areas becomes evident. In the interest of the development of stable communities (and therefore in the interests of South Africa's future), a dispensation must be established that is politically fair to all components of society. This balance must be given practical expression in the composition of the political authority at local level, the city council. Within the boundaries of every town or city only one non-racial local authority will be established with one administration and one tax base.
The City Council
Participatory democracy may be put into effect at local level in various ways, inter alia by
Ø. electing the City Council on the basis of the representation of wards, and accepting property valuations and voter numbers in a fair proportion to one another as the basis for the delimitation of wards
Ø. determining the franchise in accordance with both the interests of all lawful residents and the particular interests of owners, lessees and rate payers
Ø. considering a combination model in which, for example, half of the city councillors are elected by a voters' roll on which the names of all residents appear, and the other half by a voters' roll containing only the names of owners, lessees and rate payers.
Ø. providing for special decision-making procedures, such as increased majority votes in the city council, In respect of certain circumscribed sensitive matters.
The National Party acknowledges the need to provide, within the broad boundaries of a municipal area, for the exercise by a geographical neighbourhood of an option for self-determination over community interests. This concept involves that
Ø. a geographical area within a municipal area may decide on a voluntary basis to Institute a Neighbourhood Council
Ø. a Neighbourhood Council may be elected bythe residents of the neighbourhood
Ø. autonomous power may be entrusted to the Neighbourhood Council over neighbourhood matters, such as
Ø. the regulation of norms and standards for the residential environment
Ø. -. the granting of licences/permits in regard to the use of property
Ø. -. the provision of communal facilities
Ø. -. security matters and civil protection
Ø. -. matters that may be allocated to a Neighbourhood Council in terms of other legislation, for example education and welfare
Ø. the Neighbourhood Council may impose an additional levy on its residents for specific projects within its area of jurisdiction.
Ratepayers' associations and civic organisations can play an important role in the establishment of Neighbourhood Councils.
FREEDOM AND JUSTICE FOR ALL IN THE NEW SOUTH AFRICA
The main points of the National Party's thinking on constitutional affairs are outlined in this document. The principles which the National Party would like to see built into a constitution must form a framework within which a variety of arrangements together form a network In order to guarantee true freedom and justice for all. Thus reliance is not placed on single prescriptions or arrangements to protect the rights of individuals or minority groups. The proposed guidelines in fact all combine to protect the interests of all South Africans in three fields in particular:
POLITICAL SAY AND EFFECTIVE PARTICIPATION IN GOVERNMENT STRUCTURES
The proposed guidelines are aimed at ensuring a say in political matters and effective participation In the entire spectrum of government structures. In this regard attention is drawn in particular to the important role played by the Second House: it has the important function of protecting the constitution and minority as well as regional interests. The fact that the executive power is vested in a Presidency in which the most Important leaders are included guarantees participation across the widest possible political spectrum. Finally, the arrangement proposed for the local level aims to achieve a sound balance, while the concept of neighbourhood coundils can ensure an orderly and peaceful residential environment. Domination is eliminated by these proposals.
PROTECTION AGAINST THE ABUSE OF POWER
The point of departure that South Africa should be a constitutional state is regarded by the National Party as being of cardinal Importance. In the guidelines sketched in this document the emphasis consequently falls on matters such as checks and balances, the distribution of power, a Charter of Fundamental Rights, the integrity of the constitution, and above all the supremacy of the law, which by means of an independent judiciary protects the freedom of each citizen. The arbitrary exercise of power is eliminated by these proposals.
THE RECOGNITION OF FREE AND AUTONOMOUS FIELDS OF INTEREST OF COMMUNITIES
The guideline that government intervention in the autonomy of institutions in the non-political sphere should be limited has important Implications for the citizen. This guideline, which fits into the whole network of constitutional arrangements, takes account of the fact that numerous activities in a society are performed by a variety of groups, often In non-governmental organisations and institutions, and that It is precisely here that the freedom to proceed without interference by the state must be protected. Cultural, religious and sporting activities are specific examples of these, as well as various occupational, professional and other spheres of Interest, which contribute to the orderly structure of society through autonomous institutions. The reality of groups, legitimate group interests and the fact that there are always minority groups in society, are acknowledged in the National Party's guidelines. Therefore it is suggested that the government's ability to interfere unnecessarily should be limited. By building this principle into the constitution effectively (as well as by giving it further expression in the Charter of Fundamental Rights) communities are guaranteed self-determination in regard to business and professional life, trade union affairs, education and culture, sport, religion, language, tradition and non-political community life.
(1) An example of this exists in Switzerland.