Wednesday, 13 February 2008


Steven Friedman is rapidly becoming my hero. He rarely misses the mark, even while maintaining a degree of idealism in his writing. And that makes what he writes about all the more worrisome, since that idealism is about the minimum we should expect of our leaders, outgoing and incoming. Check it, not for the nitty gritty of the Scorpions debate, but for the wider issues it raises about democracy and democratic governance in SA.

The real sting in tale of the Scorpions
Steven Friedman

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IF THE constitution says politicians have to ask the people a question, does it not also mean they have to listen to the answer? Perhaps the most important aspect of the Scorpions saga is one which has received little attention — that it says much about part of the political elite’s attitude to the voters they are meant to serve, and to a clause in the constitution by which they are bound.

Some new African National Congress (ANC) leaders clearly have no interest in whether voters want the Scorpions. They have demanded that the specialist unit go by June because the representatives of the 630000 or so people who are active members of the ANC say it should. The 16-million who voted in the previous election, including the more than 10-million who supported the ANC, have not been asked what they think and are presumably simply expected to accept the decision.

Some analyses have commented on this. But no one seems to have noticed that this attitude reduces parliamentary processes to a farce and may do the same to a clause in the constitution.

The Scorpions can be disbanded only if the law is changed. And the law cannot be changed until a parliamentary portfolio committee has held public hearings on the issue. This is Parliament’s way of implementing clause 59(1) (a) of the constitution, which says that the National Assembly must “facilitate public involvement in the legislative and other processes of the assembly and its committees”. The Constitutional Court has overturned official decisions that were taken without consulting the public, confirming that the government does indeed have to ask the people before it decides.

But some in the new ANC leadership, and the acting national director of public prosecutions, Mokotedi Mpshe — who says the end of the Scorpions is a done deal — are acting as if consulting the people is simply for show. What if just about everyone who appears before the portfolio committee wants the Scorpions to stay? The ANC leaders, by demanding that they go regardless, and Mpshe, by planning to implement their wishes, are assuming that the people will be asked a question by Parliament — but that their answer will mean nothing.

What will the Constitutional Court say about this if asked? Having ruled that the government must ask people what they think, can it now credibly say it has no duty to act on what they tell it?

THE processes the government uses to find out what the people want are deeply flawed. One reason is that most people — particularly the poor and unorganised — can’t get to them. And so, while many public participation processes have been established since 1994, people at the grassroots still lack a voice.

But that is an argument for listening to more people, not for ignoring those to whom Parliament now gives a voice. The principle is simple: if the government or Parliament ask citizens a question, they must take seriously the answer. And this is what the politicians and officials who have already declared the Scorpions dissolved show no interest in doing.

For those of us who insist that a democratic government is bound to listen to the people who elected it, this is no great surprise. Despite lip service to public participation, many politicians and officials assume that it is they alone who have the right to decide.

Which is why, if the Constitutional Court is asked to decide the issue, it could face an important test. Its task is to establish and preserve the rights entrenched in the constitution. But people do not win — and maintain — their rights because well-meaning judges hand them down: they do so only when they are able to act to hold those who wield power to account. The most basic democratic right is that to a say in decisions — the more people gain that right, the more they are likely to be able to access the other rights in the constitution by their own efforts and in accordance with their own choices. And so the most important contribution the court can make to realising the democratic promise of the constitution is to protect and expand the right of citizens to express themselves and to make sure that government does what they want it to do.

There is no better way to start than by insisting that the government not only has a duty to ask the people their opinion but that, when it does so, it must take seriously what they say.

Friedman is a research associate at Idasa and a visiting professor of politics at Rhodes University.

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