Democrazy: lessons in Constitutionalism, legislature and the role of the Judiciary.

I recently attended an event celebrating ​20 years of the Constitution and the NCOP… Their motto remains “Taking Parliament to the people”… This is of course great PR but what are the it’s practicalities in this our country crutched on service delivery protest, increasing visibility of crime, you know the rest. It was here that I learnt truly of THE PEOPLE Governing themselves through participation, who’s ultimate goal is the complete emancipation from even participating in an oppressive system with the hope to redeem it. The Thought leader engagement session was organised by the Gauteng Provincial Legislature and its purpose was to celebrate of course but also to  unpack the various machanisms through which citizens can be active in their own governance.

By Sfiso Atomza Buthelezi

South Africa’s Constitution is praised the world over for it’s progressive and inclusive nature that is without discrimination or bias towards any citizen — and also towards anyone who may find themselves inside its borders. South Africa is also, according to the Gini coefficient, one of the most unequal societies on the planet, which then raises the question of whether the provisions in the Constitution have indeed been implemented. 

The establishment of the Constitution was aligned with the formalising of the National Council of Provinces (NCOP), which replaced what was previously known as the Senate; its purpose is to represent the legislatures of the nine provinces. This is important as a means to represent the governments of provinces in Parliament, but leaves much to be desired in terms of directly representing the people.

The Gauteng legislature, on November 16 2017, held a thought leader engagement session in the presence of the public at Johannesburg City Hall. Three speakers were chosen to present topics relating to constitutionalism, the history and role of the NCOP and lastly, the role of the judiciary.  

It’s been over 20 years since the South African Constitution began its mandate as the supreme law of the country. Many citizens have seen the tiny white booklet that serves as a “pocket guide” Constitution; some may have visited the constitutional court and witnessed the law in action, but the mood inside the hall indicated that many are sceptical about the general prevalence of justice in South Africa.

Phelisa Nkomo, chairperson of the board of the Media Development and Diversity Agency, focused her presentation on constitutionalism and its foundations. As a political philosophy, constitutionalism is based on the idea that governmental authority is derived from the people, and should be limited by a constitution that clearly outlines what the government can and cannot do. The idea is that “absolute power corrupts” and thus the state is not free to do as it pleases, but it is bound by laws limiting its authority. 

It is common knowledge that constitutionalism has a vibrant history in the UK. South Africa was an English colony, and the tradition of constitutionalism was passed on. The framework used to judge or review the Constitution is based upon a representative democracy that encourages public participation. As Nkomo noted: “The true test of democracy is the extent to which Parliament can ensure that government remains answerable to the people.” This is done by maintaining constant oversight (monitoring) of government’s actions.

The evolution of the Constitution

As we have recently experienced regarding the activities of state-owned enterprises, certain Parliamentary committees have the power to summon any person or institution to report to them and give evidence or produce documents, a newly established feature of the Constitution. 

The history of the Constitution of South Africa goes back 111 years; since 1906 there have been five constitutions. All, with the exception of the last two, have a culture of executive domination, where the governor or head of the executive had the power to appoint or dissolve Parliament. 

Ralph Mathekga is a founding partner at Clear Content, a research and consulting agency. He praised the constitutional supremacy that now exists in the South African state and Parliament. The provision for the election of the Senate was suggested in the transitional  constitution of 1993, and in 1996 the term NCOP was used for the first time. Prior to this, South Africa’s provinces were subordinated to national governance without any ability to create their own legislature. This created a separation between majority of the people and the government “representatives” of the nation state. The establishment of the NCOP has increased accountability with regards to service delivery, and the participation of the public in the creation of the laws that govern the country. 

It was decided that a unitary state would be adopted to try and facilitate the equitable distribution of resources by a central authority among the provinces instead of a federal state, where the power is divided between national (federal) government and local (state) governments. This served as a means to address improper distribution of the country’s resources as a result of apartheid and the European settler occupation of the southern-most tip of Africa. The majority of the constituency needed to be represented and the formation of an additional five provinces was established to bring governance and Parliament closer to the people.
The state is divided into three “branches”: the executive, Parliament, and the judiciary. Professor Shadrack Gutto explained that this common explanation is an oversimplification of the state as it is based upon the separation of powers, which is in itself an oversimplification. It is the duty of legislated powers, municipal councils and the NCOP to create laws and legislation, but the executive is not necessarily separate from legislature, which is what creates antagonism between the theoretical facts of separation of powers and the applied facts of the separation of powers. It is the role of executive to implement the interpretation of legislature but it seems, according to Gutto, that over 90% of all legislations drafted are done so by the executive and not Parliament. 

This reveals a sharing of power among the branches of the state, but also reveals that the “separation of power” is a myth — at least for now. The failure of legislature to correctly carry out its objectives is what is placing pressure on the judiciary. The role of the judiciary is to ensure that the laws passed by Parliament can be vetted against the Constitution so as not to infringe implicitly or explicitly on the rights of anyone residing in the country. 

Procedural and other legal violations can be challenged in the court of law. South Africa has had many constitutions, but has really lacked constitutionalism. The role of the judiciary is the interpretation of legislature to enforce “rule of law” instead of “rule by law”, which entails the manipulation of the legal/ justice system to maintain or expand illicit power. Therefore the role of the courts is to increase accountability. 

The Constitution makes provision for the right to life and, depending on the interpretation this provision, can be used to justify the prohibition of the death sentence.  It is the nature of the law to serve as a guideline, but it is subject to interpretation. This has revealed the hypocrisy of governing officials who both criticize the courts as being “a power unto themselves” and then utilise the courts to defend themselves from perceived threats. The courts should only be used as a last resort or not used at all as mechanisms for resolving such disputes. 

Questions and answers were facilitated by Livhuwani Levy Ndou, Lecturer at TUT. It must be noted the gratitude expressed towards  the presenters of the thought leadership seminar for unpacking of the nature of the legislature and the role of municipal and regional representation. It became clear that public participation is important, and that meaningful participation is what really impacts society. Citizens — through municipal and provincial representatives in the NCOP — have a voice, but it is usually a distant voice, one that is often unable to grasp legal jargon and it to concerned with daily living. Those in the upper class of society, who have access to power often doubt the capacity of the people to govern themselves, and so they have partitioned themselves but we are empowered if we know… and we can break down barriers but only if we know what we want. Be conscious of your surroundings, change what you can. Even in this system we can help create the society we live in, everybody has the right to participate in the making of South Africa’s laws… Let’s.

“Knowledge will forever govern ignorance: And a people who mean to be their own governors must arm themselves with the power which knowledge gives”. James Madison, 1822


  1. I do agree with the overuse of going to courts everytime politicians or government officials feel threatened. Court should be a last resort because we find news headlines always showing petty conflicts taking place in court.

    The representatives I feel are still either not willing to be bold enough to fight for the change we dying to see, or they’re limited in support, not always that the intellect or knowledge of the Constitution is lacking.


    • Hi Adrian, thank you for you engagement. I think my main argument is the people don’t have represention, and the courts end up fighting battles that could’ve been avoided were the people more involved in what’s happening… Which is through legislature, that we have have elected as representatives but their have a stronger allegiance to polical parties intrests than the citezen…


Leave a Reply to sfisoatomza Cancel reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s