Which Comes First? The Rule of Law, Or Majority Rule?

*This article was first published by Independent Media Group:
http://www.iol.co.za/dailynews/opinion/not-so-veiled-promise-of-using-majority-rule-2005550 
“You can do anything as long as you make the people understand” said Gwede Mantashe on Friday night as he patiently explained to the country why the ANC Executive had decided to disregard the Constitutional Court findings that both Jacob Zuma and the National Assembly had acted in breach of their constitutional obligations.

The Constitutional Court had just managed to clarify the Constitutional breach which unfolded over the last 7 years, a breach that was allowed to continue for so long with obfuscations, deliberate mis- construal   and the blind use of the ANC majority in Parliament.

But it did not take the ANC long to muddy the waters again, insisting that even though the Constitution is the “anchor, shield and loadstar” of our young democracy and that the “Judiciary is the final arbiter”, that all of this, was nonetheless irrelevant if the ANC could “make the people understand”.  The upshot of Gwede Mantashe`s insistence on “making the people understand” is a not so veiled promise that the ANC will use its majority, to ride out the storm and to deal with the Constitution as and when it suits the organisation.

Unfortunately the matter is not as simple as Gwede Mantashe tried desperately to convince us it was. Instead, emerging from the intransigence of the majority Party is a Constitutional and a political crisis that does not hold much nurturing value and far too much toxic emissions for the “young democracy” Gwede so glibly refers to.

Leaving aside the political crises that will unfold in Parliament and the streets of South Africa over the coming months; the Constitutional Crises is of enormous importance and if not resolved within the confines of the constitution, will leave our young democracy firmly on the path to an authoritarian state.

Constitutional Court Chief Justice Mogoeng Mogoeng , in delivering the unanimous judgement was at pains to place at the very beginning of the judgement, the fact that our country`s constitution is premised on the rule of law.

This was no insignificant throwaway statement. And indeed, the President, the ANC and the National Assembly acknowledged this at the outset of their own respective responses. However, acknowledging this fact does not mean that one can escape its implications by either an apology, or by the use of a majority of electoral votes.

The idea of the rule of law is a thread which has run through the process of state building for over 2000 years and is premised on one very simple proposition, that the sovereign, and the state and its officials, are limited by the law. The long history of the idea of the rule of law stems historically from the perennial struggle to restrain the tyranny that inevitably emerges with the exercise of power.
If the state is not bound by the law and is not subject to sanction from the law, as opposed to sanction by the electorate, then our society is drawn away from this foundational and fundamental premise of the rule of law, and instead we revert to the rule of the majority.

This statement may appear innocuous on face value. For is this not what democracy is all about? Is it not correct that we should rule by virtue of the majority? The answer of course is yes and no.

Yes we should govern by majority, provided that the majority governs within the constraints of the Constitution and provided that it does not act outside of the Rights that have been enshrined within the law through the Constitution.

And No, the majority rule prescript is set aside as soon as any laws or practises that emanate from a majority, is in conflict with or inconsistent with the rule of law as set out in the Constitution.

In a society in which the rule of the majority trumps the rule of law, we will not be surprised to find in such a society, that with time, the growth of corruption, arbitrary abuse of power and discrimination against groups and individuals will manifest in a myriad ways. In short the tyranny of the majority, unlike the law, is not premised on rational consistent principles, argued and won by uncompromising struggles of oppressed people, but rather on the emotional vagaries of promises and patronage.

Our elders who scripted the constitution were fully aware that even within a society in which the rule of law was paramount and foundational, this should not limit present and future generations from changing the laws to suit different and changing circumstances and that the law and the rule of law could equally be used for good as it could for evil.

The law is ultimately devoid of substantive content and formal legality and the restraints on regimes are often compatible with both equality and inequity and the law by itself cannot guarantee fair and equal distributive outcomes.  Indeed it is for this reason that even when our society is premised on the rule of law, the majority still ultimately gets to decide what those constitutional laws should be in order to both restrain the tendency towards tyranny and to ensure that fair and equal distributive outcomes are achieved.

But in order to do this requires an increased majority to change the Constitution. In this sense, unless the ANC gathers the increased majority required to change the constitution, they are under strict formal legal compulsion to hold the members of its party who have contributed to the constitutional breach, to account.

South Africa has, since 1994, has had many political moments in which the country either seemed on the brink of great achievements such as the adoption of the Constitution in 1996, or on the precipice of doom, such as the massacre of striking workers in Marikana.

This moment in which the Constitution and the rule of law is being set aside in favour of the rule of the majority, marks not only the continuation of the tendency towards autocracy and tyranny but also a decisive break with the vision and intentions of the drafters of the Constitution.


May our Ancestors guide us.

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