In a lengthy and detailed comment on last month’s Constitutional Court ruling on the so-called Nkandla matter, former President Thabo Mbeki makes some pertinent comments on how the organs of State should function in order to protect our Constitutional Democracy.
1. On the President, Mbeki says political parties should ensure their candidate has the capacity to discharge their Constitutional responsibilities in our Constitutional Democracy.
“Parliament must take all necessary measures to satisfy itself that the person it elects is capable of and is committed to this discharge of their Constitutional responsibilities in our Constitutional Democracy.
“Subsequently, in honouring its oversight responsibilities over the Executive, Parliament should regularly make an assessment of whether the elected President is indeed carrying out his/her Constitutional responsibilities; and,
“Government and the State should ensure that the President is provided with the ways and means to empower her/him effectively to discharge the said Constitutional responsibilities.”
2. With regards to Parliament, Mbeki said: “Parliament is the mouthpiece, the eyes and the service-delivery-ensuring machinery of the people. No doubt, it is an irreplaceable feature of good governance in South Africa.”
Therefore, in Parliament:
- All Political Parties must ensure that their Parliamentary members understand that their first responsibility as Members of Parliament, above Party loyalty, is to serve as the ‘voice of all South Africans, especially the poor, the voiceless and the least remembered’;
- Similarly, Parliament should conduct induction processes for all its Members such that they understand this principal individual and collective responsibility on their part;
- Consequently Parliament should educate its Members to understand the meaning of their oversight role over the Executive and State organs, which includes ensuring that these properly execute their Constitutional and Statutory obligations, and meet the commitments they have made to Parliament, again above Party loyalty;
- Parliament should also help to ensure that each Member understands that with regard to whatever she/he does, she/he is duty bound to honour to their best of her/his ability her/his public declaration of allegiance to the Republic, and obedience, respect and vindication of the Constitution and all law of the Republic;
- The Parliamentary Presiding Officers in particular must ensure that Parliament implements all Decisions handed down by the Courts relating to Parliament, consistent with the Separation of Powers, including as this relates to oversight over the Executive and the State Organs; and,
- These Presiding Officers must ensure that in everything it does, Parliament respects the reality that ours is a Constitutional Democracy and therefore that the Constitution is the supreme law of the Republic with obligations which must be fulfilled.
3. With regards to the Judiciary, Mbeki says that considering the delicated role the judiciary must have within the context of the separation of powers in a constitutional democracy, it would be important that:
- The processes to select and appoint Members of the Judiciary should be such that they give the best possible guarantee that those selected are properly qualified truly to understand the meaning and application of the Separation of Powers and the role and place of the Judiciary in this regard, in the context of the reality that ours is a Constitutional Democracy;
- The leadership of the Judiciary, especially the Chief Justice, should undertake the processes that Members of the Judiciary are properly schooled with regard to the immediate foregoing; and,
- This leadership, especially the Chief Justice, should engage the Members of the Judiciary in educational processes to ensure that these Members understand the national circumstances which gave birth to, as well as those under which our Constitutional Democracy must function.
4. On the Public Protector, Mbeki said the person in this position should be given the resources to carry our their work.
“It should further be popularised among the people as a whole to encourage these to access it as need may arise; and, the (State) National Executive should take all necessary action to familiarise the Executive authorities and State Organs in all the Spheres of Government both with the powers of the Public Protector and their responsibilities to support her/him in the discharge of her/his duties.”
Mbeki also made the following comments:
5. It also means that Members of all Political Parties elected to Parliament should understand that they share a collective responsibility to act in concert to discharge the responsibilities imposed by the Constitution, at all times to honour their public declarations of submission to the Constitution and all laws, and to respect their primary obligation to serve as true peoples’ tribunes, which makes them accountable, first and foremost, to our people as a whole whom they are elected to represent.
6. The decision to establish a Constitutional Democracy also means that all Members of the Judiciary, others in the Criminal Justice System, as well as all those who serve in other State Organs should not allow themselves to be “owned” by any Political Party and/or any other interest, remaining loyal to the fundamental proposition advanced recently by the Chief Justice when he said – “My soul is not for sale.”
7. It also means that all Chapter Nine institutions, regardless of who heads them, should do everything possible, acting without fear or favour, strenuously to discharge their Constitutional and Statutory responsibilities.
8. The decision to establish a Constitutional Democracy also means that all Political Parties which function within this Democracy, whether in the Executive and/or the Legislature, have a primary obligation to help develop and entrench this Constitutional Democracy, at all times respecting and popularising the understanding that they, like everybody else, are obliged to operate within and under the imperative that the Constitution is the supreme law of the Republic which dictates the nature and functioning of our System of Governance. In this regard they would be acting to honour their legal, political and ethical commitments attendant to the acceptance of a Constitutional Democracy.
9. That strategic decision to establish a Constitutional Democracy also imposes the obligation on the masses of our people, and all their organisations, continuously to act as the guardians of our Constitutional Democracy, at all times determined to defend it as the product of their sacrifices and their guarantee that the people shall govern!
10. We owe it to our Constitutional Court to salute the Chief Justice and his fellow Judges for the meticulous manner in which they discharged their Constitutional responsibilities as our Apex Court, clearly to identify the national imperatives binding on everybody with regard to the strategic task to ensure the vibrant functioning of our Constitutional Democracy!