The third decade of this century may well prove decisive in the determination of the future of constitutional democracy. The bad news is, we don’t have much, or any, time.
As the new century dawned, constitutional democracy appeared to have become a dominant model of governance for countries which held themselves out to be democracies.
The rise of Trump in the United States, Bolsanaro in Brazil, Orban in Hungary, Modi in India, Erdogan in Turkey and, arguably, Johnson in Britain, has given rise to a new model: leaders elected by a democratic election who then eschew the guardrails of the constitution and claim to be the true voice of the people, unfettered by legal institutions.
The cult of the leader, rather than the law, is increasingly dominant, as is the influence of a brew of cultural factors that propel nationalism: a longing for a long-lost glorious past (as if it ever existed) and a division between us and them to the centre of politics to the fore of public life.
Of course, these cultural factors combine with economic causes — growing levels of inequality, increasing unemployment, anger at elites who have greatly benefited from economic globalisation — to ensure that xenophobic politics is on the rise. South Africa seemed to have dodged the bullet aimed at the heart of constitutional democracy when Jacob Zuma resigned as president.
In the light of current developments, that may well have been an overly optimistic view.
Consider South Africa as we enter the new decade. Growth of the economy is almost non-existent, and this in a country where the official unemployment rate is above 29%, a figure which surely is significantly underestimated. As increasing numbers depend on social grants which are provided by an ever-shrinking tax base, the threat of social unrest becomes more realistic.
While small- and medium-sized businesses are supposed to drive growth, they are impeded by the crumbling infrastructure; in particular, Eskom, where, save for the ritual incantation of “we will fix the problem”, no tangible action ever seems to take place.
The balance of expert opinion is that the swift introduction of independent power producers into the grid would provide some much-needed margins to ensure systematic maintenance of existing power stations. Ironically, the minister in charge of granting permission to ensure that this can be done, Gwede Mantashe, issues incomprehensible justifications for his lack of action, the president does nothing to get the necessary changes made, and the press then give Mr Mantashe a free pass in their haste to round upon another constitutionalist in government, Pravin Gordhan (of course the key one being President Ramaphosa).
In summary, the prevailing conditions are ripe for the kind of populist politics that has been in evidence in other countries under the constitutional cosh. And that is even before the state of the institutions enjoined to promote and protect the Constitution is examined.
There is little point dwelling on the public protector. Gallons of ink have been spilt in discussing her frequent reversals in the courts. Suffice to say that AD 2020 will be critical to the future of the public protector, given the plethora of reviews of her reports which will be decided in 2020, and that is apart from a possible parliamentary process. Arguably a key indicator of the importance of this issue to the future of constitutional democracy is the affidavit of President Ramaphosa in one of these reviews, in which in argument his lawyers allege that the public protector has acted in bad faith to undermine the Office of the President.
That brings one to the state of the National Prosecuting Authority (the NPA). Shamila Batohi has now been in office as the head of the NPA for almost a year. Apart from the commendable appointment of Hermione Cronje, the inspanning of some of the country’s finest advocates to advise and the announcement that some middle-rank Eskom ex-employees will be prosecuted, there has been precious little action which the public has seen.
Arguably there has been much activity behind the scenes, but the critical point is the very legitimacy of the NPA, the criminal justice system and, by extension, the future of constitutional democracy depends on a series of prosecutions against those who committed a variety of acts of State Capture and other forms of corruption.
The key point is this: while the Zondo commission does important work in discovering the sheer scale of corruption and degradation of key institutions, its report is clearly more than a year away. If by the end of 2020 there have been no meaningful prosecutions of those responsible for that which Zondo continues to uncover on national TV, it will only perpetuate a continued culture of impunity, embolden those whose interests are to ensure that they remain immune from legal consequences and send a message that rent-seeking by nefarious means is never visited with adverse consequences.
In turn, this will exacerbate the overall economic conditions that are increasingly favourable to populist opportunism and fatally infect the constitutional body of the country. This must be the year when the constitutionally empowered institutions, the increasingly weakened independent media and civil society demand and obtain concrete action.
If the present status quo still exists by this time in 2021, we would have moved way beyond the constitutional tipping point. DM