In 1998, the new democratic Constitution put in place was claimed to be the best in the world. It promised a better life for all. According to this new Constitution, it was necessary for parliament to pass a certain amount of legislation in order to complete the constitutional process.
For example, amongst others, parliament needed to pass an electoral act and pass legislation needed to enable parliament to hold the executive accountable.
Despite the sacrifices made by so many of its members during the fight for democracy, when it came to passing an electoral act, the ANC-dominated parliament chose power rather than democracy which resulted in them demonstrating that without the Rule of Law democracy is unsustainable.
Absolute power corrupts absolutely
The Electoral Act No. 73 of 1998 required political parties to draw up lists of candidates for the legislatures and for the people to vote for political parties instead of electing people as is required by the Constitution. According to Schedule 6 of the Constitution, the list system was a transitional measure supposed to end with the election of the second parliament under the new Constitution.
The Electoral Act No. 73 of 1998 was therefore unconstitutional. According to the Act, these lists could be changed by adding and removing people. Parliament changed the Constitution so that members of parliament who were no longer members of the party that nominated them to parliament would lose their seats in parliament.
Vacancies in parliament could be filled by the parties from their lists and any party member that did not toe the party line could be dismissed from parliament and replaced from a party list without a bye election being held. Members of parliament were therefore under the absolute control of their parties.
The National Executive Committee of the ANC (NEC) therefore controlled the ANC members of parliament. This gave the ANC leadership enormous power and meant that South Africa was not being governed as a democracy (government by the people) but as a politicracy (government by politicians). This proved Lord Acton correct when he said 'Power tends to corrupt. Absolute power corrupts absolutely'. An orgy of corruption and looting has followed ever since.
Legislation to counter executive corruption was ignored
Legislation required by the Constitution to bolster the powers and effectiveness of the Auditor General, the Prosecuting Authority, and the Public Protector to counter corruption was ignored.
Despite the fact that the Constitution and the Rule of Law are the supreme laws of the country, parliament did not act according to the law, thereby violating the Constitution and the Rule of Law.
Amongst other legislation which it was required to pass, the tethered parliament did not pass the necessary legislation required to effectively control the executive which includes the president. A very important requirement of this legislation would have been to regulate how the president makes appointments.
When Jacob Zuma became President, the press reported that he was appointing agents into posts in government departments. As an agent of the people, he was supposed to act in the interest of the people and not in his own interest.
It was also reported in the press that a member of the NEC had told Tony Leon that due to President Zuma's powers of appointment only about ten percent of the members of the NEC were not dependant on the President for their monthly salaries. It was also reported that under President Zuma the average tenure of a Director General of a government department was little more than a year.
Violation of the Rule of Law and the Constitution
The members of the NEC were therefore quite aware that they would be dismissed and lose their exorbitant salaries if they did not do the President's bidding. President Zuma therefore controlled the NEC which in turn controlled parliament due to the unconstitutional electoral act.
President Zuma having this unbridled power, was violating the Rule of Law and the Constitution. It also enabled President Zuma to help his friends, the Gupta family, in their State Capture Project which cost the people of South Africa trillions of Rand instead of substantially contributing towards making a better life for all.
When opposition parties in parliament tried to get parliament to do their constitutional duty and hold the President accountable, he sat in parliament and laughed at them. He knew that ANC members of parliament would be loath to risk being removed from parliament and lose their generous salaries should they vote against him.
The State Capture saga illustrates that even the best Constitution in the world is of little use if it is not defended by the people.
This article was first published on BBrief on 20 April 2021.