New South African Review 4. Devan Pillay
of the ruling party and its leader it is generally accepted that the ANC, as the historic liberation movement, will win a renewed mandate. It is also widely expected that it will lose some ground electorally, with many predicting that it will receive less than 60 per cent of the vote (compared with a high of just under 70 per cent in the election of 2004). The ANC will, however, undoubtedly triumph again, and celebrate its victory as a victory for democracy – which, in broad-brush comparative terms, it will be. No transition to democracy is ever ‘an easy walk to freedom’. Two decades after the collapse of the Soviet Union, Russia under Putin has lapsed back into authoritarianism; within a few years of independence numerous African countries fell prey to dictatorships, coups or civil war; more recently, the ‘Arab spring’ in country after country has reverted to winter. So, despite the fact that for many South Africa is a ‘dominant party democracy’ – that is, one in which a ruling party dominates the electoral and political arena under a rubric of formal political competition but faces no apparent threat of losing power – it remains a country where the classic political freedoms (of assembly, movement, association and speech) which were denied to the majority under apartheid remain largely intact, even while various indicators suggest that the quality of democracy is declining.
Any attempt to assess the state of democracy in South Africa after twenty years is obviously a perilous enterprise and, unsurprisingly, there are competing narratives. On the one hand, the ANC government and its supporters claim that while much remains to be done it has brought about significant changes for the better; South Africa is a robust and noisy democracy, and while alarmingly high levels of inequality, poverty and employment persist, major strides have been made in improving the material lives of the majority. On the other hand, critics from both left and right aver that the ANC has proved arrogant and unaccountable, has undermined (or threatened to undermine) key aspects of democracy, and has pursued an agenda of racial transformation which, while promoting the rise of a party-connected elite, has rendered it hugely inefficient and unable to tackle the challenges of reversing the ravages of apartheid. Those on the right want to see more free-market reforms and the leashing of labour, whereas those on the left want more aggressive state intervention to oversee rapid industrialisation, and greater protection for labour. A growing voice is nervous of both excessive state bureaucracy and expanding market domination – and prefers a society-led holistic development path that balances economic growth with environmental sustainability and social equity.
These narratives can scarcely be reconciled – indeed, their debate constitutes a welcome characteristic of South African democracy. In any case, whether we choose to consider that South Africa’s glass is half full or half empty will reflect political and ideological positions alongside the particular location of actors and observers (a black mineworker being unlikely to agree about rights and wrongs with a white corporate executive). Nonetheless, it can be argued that the virulence of the debate reflects a deepening sense of crisis and disillusion, a sense that the discord which today characterises South African society is so extreme that it threatens any prospect of social coherence; that it continues to reflect racial divisions and disharmonies; and that a greater sense of national unity is vital if South Africa is to face up to its massive problems. It is fear that South Africa is on a dangerously downward spiral that explains the centrality of Nelson Mandela in the public imagination.
Concerns about South Africa’s developmental and democratic trajectory are shared by all contributors to the present volume. What follows is an assessment of the achievements and failures of the democratic transition, within a historical and comparative context.
THE FOUNDATIONS OF DEMOCRACY
The negotiations which culminated in South Africa’s transition to democracy in 1994 had proceeded along two tracks. Most famously, the political actors involved, led principally by the ANC and the National Party (NP), reached an agreement (albeit after tortuous contestations) which saw the ‘new South Africa’ emerge as a constitutional state – one whereby the government and people would ultimately be subject to the values and procedures laid down by a constitution. Equally significant, however, were related discussions between business and the ANC (recognised as the incoming government) which linked the transition from white minority to black majority rule to de facto acceptance of free-market capitalism. Although the terminology was to be downplayed – for many within the liberation movement looked forward to a rapid transition to socialism – South Africa from 1994 was to become a capitalist democracy – one in which the ANC would be enabled to hold political power whilst, in the beginning at least, the existing white elite retained economic power. Yet in recognition of the popular forces in play – notably as represented by the Congress of South African Trade Unions (Cosatu) – this capitalist democracy was to be characterised by a social compact between business, the state and labour which embodied hopes that the conflicted economy of the past, characterised by bitter struggles between capital and labour, could be replaced by one founded upon mutual cooperation. Although the resulting deals are often depicted as an ‘elite compromise’, implying cynical backroom, self-interested bargains struck between old and new elites to limit the extent to which the ANC would be able to democratise (and socialise) the economy, they were arguably necessary. Without them it is unlikely that the political settlement would have been secured at that point; with them, the productive capacity of large-scale capital could hopefully be mobilised and re-oriented to serve the needs of all South Africa’s people.
The settlement was intended to provide the basis for democracy. How should we assess its success?
SOUTH AFRICA AS A CONSTITUTIONAL STATE
In 1996 the founding constitution of 1994 gave way to a ‘final’ constitution, promulgated by a democratic parliament acting as a constituent assembly. Its key features centred around a constitution which made its own supremacy, and that of the rule of law, the cornerstones of democracy; a separation of powers between the executive, the legislature and the judiciary; an independent judiciary whose judgements were to bind all organs of state and all to whom they were to apply; and the creation of independent state institutions to support multiparty democracy. The Constitution incorporated a Bill of Rights enshrining a multiplicity of liberal and social freedoms (rights to life, property, equality before the law, dignity and so on) as well as an obligation on government to promote the interests of persons historically disadvantaged by unfair discrimination (socioeconomic rights). It also required that public administration should be governed by the democratic values and principles enshrined in the Constitution. Institutionally, it established three levels of governance which allocated prime responsibility for policy making and financial administration to the national government, but devolved major policy implementation responsibilities to nine new provinces and local authorities (whose racially segmented predecessors were to be rationalised into a more coherent and united system of local government later confirmed by the first democratic elections in 2000). In essence, the political settlement laid down that the government should be held accountable to the Constitution, the guardianship of which was to be entrusted to a Constitutional Court which would have the authority to rule whether any official conduct or legislation was valid, and whether the government was meeting the obligations imposed upon it under the Constitution (Hoffman 2011).
Under the Act of Union of 1909, South Africa had been governed in an essentially Westminster style which, when push came to shove, enabled governments of the day to enact any legislation they chose. As a result, white minority dictatorship was largely exercised in ways which were fully legal. Under democratic constitutional rule, in contrast, governments are bound by the constitution, and the constitutionality of the laws they enact and the actions they take can ultimately be challenged. The foundation for this was laid down by the requirement of the ‘interim’ constitution of 1994 that the final constitution, as approved by a constituent assembly, should secure the concurrence of the Constitutional Court that it was in line with agreed constitutional values. This is a constraint that the various ANC governments have had to take seriously, for on different occasions the Constitutional Court has ruled against the constitutionality of actions or ordered the government to fulfill its obligations.
In a recent contribution, Theunis