What ConCourt gave our democracy in the past 30 years

Nkosikhulule Nyembezi 

THE 30th anniversary celebrations of the Constitutional Court's existence remind us of a lesson we have long since learned but have not yet sufficiently practised. The lesson is grounded in principle and experience. 

The principle is that we accept that the Constitution tells us that universal adult suffrage, a national common voters’ roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness are some of the values on which our state is founded.

Our Constitutional Court has done excellently in giving us the scope and content of our human rights in the policies and laws passed by legislative bodies, such as in the 2006 African Christian Democratic Party case where it found that the right to stand for public office and the right to vote in free and fair multi-party elections “form the high water mark of democracy.”

It gave us human rights vocabulary and terminology identical to its judicial authority, such as in the 1999 August case permitting prisoners to vote where it found that the universality of the franchise is important not only for nationhood and democracy, but also because “the vote of each and every citizen is a badge of dignity and of personhood,” as “quite literally, it says that everybody counts.” It gave us an aversion to domination and abuse of power by not imposing itself on lower courts and other government branches. 

It gave us a human rights culture that is kindly reluctant to become obsolete, as it did in the 2020 New Unity Movement case that opened space for independent candidates to contest national and provincial elections along with political parties. 

It gave us the tools to withstand a divisive and exclusionary world of party politics. It ruled that the right to vote and the right to stand for public office “are not dependent upon membership of, and support by a political party. They are equally available to all adult citizens.”

It also ruled in the 2015 Kham case that although independent candidates may not have had the support of the big electoral battalions, they are “entitled to stand for election and to be treated in the same manner as political parties.” This was our exposure therapy. It gave it generously.

It gave us the ability to talk to anyone about human rights violations because we could not stand the awkward silences that our historical political polarisation provided, as in the 2016 Mhlophe case where it found that “while every adult citizen enjoys the right to vote, the guarantee of free and fair elections is extended to every citizen regardless of age or active participation in voting. Even disenfranchised citizens and children are entitled to demand that elections be free and fair because, following an election, there must be a government for all and not only those who voted for the ruling party.”

It gave us a cosy positioning of political parties in our multi-party democracy system which are private organisations fulfilling a public function, such as in the 2012 Ramakatsa case where it ruled that they are “the veritable vehicles the Constitution has chosen for facilitating and entrenching democracy”  and are the “indispensable conduits for the enjoyment of the rights.”

But citizens have paid a heavy price, and our democracy has suffered under selfish political parties that cannibalistically act as vehicles to articulate narrow group aims, failing to nurture political leadership, incompetent to develop and promote policy alternatives, and unable to present voters with alternative coherent diverse electoral choices. 

Things never seemed to be going well, so they gave the citizens and the Constitutional Court judicial instability and jurisprudential uncertainty anxiety, too. The lack of party cohesiveness in legislatures has contributed to stability that has spilled over to the courts because of the high volume of unnecessary cases – especially in a parliamentary democracy in which the majority party forms the government and legislators from that party usually support the political programmes and policies formulated by the members of the executive because of the enforcement of strict party discipline.   

We gave it things, too. We gave it some disappointment when we did not implement judicial decisions. Then we gave it gratification when we did, not just in a tick-box fashion, but in building a human rights culture and a resilient constitutional democracy. In that way, the citizens and the court gave our democracy something to marvel at. 

Our experience is that when independent candidates contest elections alongside political parties and give us as citizens the power to make political choices freely, we will benefit because of the diverse views expressed in election manifestos, how using citizen voting power will strengthen accountability and political control give legitimacy to political power, how participating in processes that will lead to peaceful change in power will enhance political stability and handing down to the young socially constructive values.

This experience has been validated in the life of communities in every municipality ward, as this often manifests in the diversity of issues candidates canvass with local communities, including community-specific issues overlooked by political parties.

Independents and party candidates still face appalling abuses. These include: political violence, pulling down and defacing of election posters, and political murders simply because they have disassociated from and are challenging established political parties.

Some say all this is the legacy of a violent political culture and there is nothing anybody can do to eradicate it.

I say it is criminal and we each must stop it.

For more than three decades I have been in public life and attended many international human rights events and anniversary celebrations. And in each, leaders announced uplifting goals.

But our purpose today, tomorrow and throughout this century is not to articulate more promises but to achieve real breakthroughs by caring about each other, lifting each other, ensuring that all respect, protect, and fulfil human rights, and building an action network that stretches across every municipality border, race, background, and creed.

This principle and practice speak to the parallels of a mismatch between election promises and human rights attainment, a social contract and political legitimacy deficiency, and remind us that progress in human rights realisation occurs in a conflicted and contradictory environment, step by step, and each victory becomes a platform upon which the next may be built.

Our shared task is to keep building and progressively realising human rights until we have raised enough platforms high enough to transform the very horizons of the earth. And in that quest, we invite everyone to help us and caution each one that they cannot stop us.

Nyembezi is a researcher policy analyst and human rights activist

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