According to the youth league, the persistent and malicious litigation of the executive has been a clog in the wheel of the ANC led administration. Aggrieved top campaigner of ANC presidential hopeful Nkosazana Dlamini-Zuma has called for a sweeping review of South Africa’s constitutional democracy.
Meokgo Matuba, secretary general of the ANC Women’s League, wants the current system replaced with a parliamentary system which would give the majority a final say over governance.
Among her concerns, she said, were that the courts and the Chapter 9 institutions – in particular the Public Protector – established by the Constitution diluted the powers of the president and Parliament.
“It was done in good faith, but good faith has landed us here today – each arm must know its responsibilities and boundaries.”
Matuba said the constitutional democratic system was standing in the way of many changes that needed to be made.
“If it was not a constitutional democracy we could have dealt with those issues,” she said in a wide-ranging interview with News24 at Luthuli House ahead of the ANC’s policy conference.
“We have given too much power to Chapter 9 institutions,” she said.
Matuba said it was about time a review was conducted of the advantages and disadvantages of a constitutional and a parliamentary democracy.
Ironically, the African National Congress fought against the parliamentary system that was in force during apartheid era.
Apart from the fact that Africans were excluded, parliamentary and executive decisions during the apartheid era could not be overturned by courts. The executive then was accused of dominance over Parliament.
In Matuba’s version of democracy, members of Parliament would have to be accountable to their political parties and their constituencies, with committees created to monitor their work.
“They must be accountable to their constituencies and to their organisations because they are deployees of the movement or organisation. So, whoever puts you in power, you should account most importantly to the people who elected [you].”
Matuba said Chapter 9 institutions have over-stepped their authority over the years and decisions of Parliament and the executive were routinely challenged by opposition parties.
“It is like we are co-governing with the courts as the ANC,” she said.
Opposition did not bother to represent their constituencies as theirs was “to take ANC-led government to court on a daily basis, [where] every decision gets questioned”.
She also asked why certain Chapter 9 institutions, like the Public Protector, were more powerful than others, comparing it to the Commission for Gender Equality.
“The issue of Public Protector that her recommendations are binding and will only be reviewed by the courts: For me it was like we giving too much powers to Chapter 9 institutions – and why others must be better than others?” Matuba said.
Although Dlamini-Zuma, the ANCWL’s preferred presidential candidate, hasn’t suggested fundamental changes to the present constitutional order, she has raised concerns about government’s decisions being reviewed by courts. She has also supported radical land reform.
The Constitution empowers the courts to strike down executive and parliamentary decisions that are irrational or not in line with the Constitution.
Referred to as judicial review, this power has served as an instrument to hold the government to account and prevent abuse of power.
But Mutuba is not happy that civil society groups and opposition parties have successfully challenged a number of government decisions in courts.
Recent decisions that have embarrassed the ANC include the Nkandla judgment where the Constitutional Court found against President Jacob Zuma and Parliament. In the Sassa debacle, the same court found against the executive.
The courts also ruled against government’s failure to fulfil its international obligations to arrest Sudanese President Omar al Bashir who has been indicted in the International Criminal Court.
Government’s bid to exit the Rome Statute that established the ICC was also reversed by the High Court because the executive failed to seek approval from Parliament as required by law.
More recently, the High Court ruled in a matter brought by the Democratic Alliance that the president should provide reasons that informed the Cabinet reshuffle that sparked credit ratings downgrades.
“If I am the state president, there are powers and functions that I have in terms of the Constitution. When I exercise those powers, I am taken to court. Then I must explain why I can’t use my powers,” she said.
Matuba said she didn’t encourage people to disregard the laws. “But each arm [of government] must understand its responsibility and boundaries.”
She expressed frustration at the fact that the Constitutional Court was a court of final instance and its decision could not be overturned.
“They [judges] are human beings; there can be an error in judgment, but when you are unhappy what do you do?” Matuba asked.
She said the ANC’s two thirds majority attained in 2004 under President Thabo Mbeki was wasted because the Constitution was not amended to allow, for example, the expropriation of land without compensation and change the governance structure of the South African Reserve Bank.
This is expected to be widely debated at next week’s ANC policy conference.
The ANC currently has 62% representation in the National Assembly, making it impossible for it to effect constitutional amendments on its own.
Matuba proposed that constitutional amendments should not spare the Bill of Rights in the Constitution. She said the Constitution gives perpetrators of crime more rights and victims.
“For example, on domestic violence issues, a woman will be killed but the perpetrator is there enjoying his rights in prison with ability to study. But what happens to a woman killed?”