Apocalypse not quite yet

January 7th, 2012

We are apocalyptic, us South Africans. If our democracy is less than perfect, we say it is dying. If a Bill passed by parliament threatens journalists, it is the end of freedom and farewell to investigative reporting. If we lose a political battle, we think we have lost the final war.

Our democracy has been on display this past few weeks in parliament, in judicial hearings and on the streets. An imperfect democracy, certainly, but also a vibrant one. If democracy is measured by the open contestation of ideas, options and policies, by battles for position rather than having them imposed from above, by the capacity to challenge authority without fear, then ours is alive and well.

In Parliament, the Protection of Information Bill was passed by a committee after months of haggling, and it is considerably better in most respects than the one first tabled about a year ago.

Just a short while ago, it seemed the ANC was going to drive through an aberration of a Bill, one that would have seriously impaired our media freedom and cast a net of secrecy over corruption. But citizens mobilized, formed new organizations, took to the streets, called meetings, issued statements, lobbied and generally made a nuisance of themselves. The Bill still has problematic clauses and may still have a chilling effect on investigative reporting and whistle-blowing. In refusing to put in place substantial protection for those acting in the public interest, the ANC lost an opportunity to lead the world with ground-breaking legislation. It has disappointed those who had faith in their commitment to progressive values.

But participative democracy worked. In the process and through the organized pressure of citizens, the Bill was considerably improved. The definition of who could declare something secret and for what reasons was narrowed, and a system of appeal – albeit an imperfect one – was put in place.

The ANC was forced to listen, and in the end it did. Or half-did.

This was a victory for the process of democracy. If parliament is meant to be a place where these proposals are contested, and Bills improved, then this happened. Those of us who wanted to see the Bill totally rewritten did not achieve victory, but won enough skirmishes to ensure that nobody got quite what they wanted. And that’s at least a partial triumph.

The fight is not over. There will still be petitions to the President to send it back to Parliament, and it will likely end up before the Constitutional Court.

Also in the last few weeks, the President made a controversial nomination for Chief Justice, and a wide range of citizens – from small activist groups to the giant Cosatu – mobilized to convince the Judicial Services Commission to withhold their approval.

The man’s experience was questioned, his previous judgments scrutinized and his religious beliefs examined. He went through five weeks of public scrutiny, some of it unfair, some of it harsh, but all of it pertinent. He was then given the opportunity on television and radio to defend himself and attempt to prove he was fit for the post. He faced tough questioning, and could show his mettle.

In the end, the President’s candidate was endorsed and many will be disappointed that the JSC went along with it despite the serious flaws and the dubious record that were revealed. But those who wanted to could challenge his candidacy. We did not just accept a decision handed down to us. And for the first time we had a rich and important national debate about the choice of Chief Justice and the values and qualities we expect from the holder of this office.

For progressives, a major battle was lost to conservatives. But that is democracy. The battle was fought and lost and democracy depends on the minority accepting the majority view with grace – even as they continue to argue against it.

If you elect Jacob Zuma as president, then Chief Justice Moegeng Moegeng is what you must expect. If Cosatu did not want to see this happen, they should not have supported Zuma in his bid for office. He always represented the more conservative, traditionalist element of the ANC – and so it is no great surprise that he chose Judge Mogoeng over the towering figure of Judge Dikgang Moseneke, whose intellectualism and progressive views would have got up the president’s nose.

You get what you vote for. At least in this democracy the president’s choices are subjected to close scrutiny and we don’t have to accept them passively. We have the platforms to challenge them, and will continue to do so. This is what makes us different from Zimbabwe during the first two decades of their democracy.

When George Bush succeeded in putting social conservatives into the US Supreme Court, it was a blow for progressives and liberals – but nobody thought it was the end of democracy.

Those who value healthy democratic contestation must recognize the value of what has happened in the last few weeks. What we saw in parliament and the JSC was open democracy at work.

Sadly there were those who saw the scrutiny of Mogoeng as a “vicious” and “sustained” attack, who questioned the legitimacy of questioning the president. Senior ANC member Ngoako Ramatlhodi wrote that during negotiations the ANC had made “fatal concessions” that allowed the state to be “emptied” and institutions like the judiciary and civil society given the power to block transformation. ANC secretary general and Communist Party chair Gwede Mantashe called the criticism of Mogoeng “a proxy war on the president” – words that evoke treason. Communist Party chief Blade Nzimande said there was a liberal agenda to unfairly criticise the liberation movement. How strange it was to hear Communist Party leadership rise to the defence of a conservative accused of holding misogynist and retrogressive views, and one who believes God spoke to him on the matter.

But they did not tackle these issues, they just cursed those who had the temerity to dissent. They would prefer the ANC to be much more free to do as it pleases. This is a view of those who don’t like constraints on their exercise of power – the very essence of freedom.

In the face of such a view, democrats should be celebrating the small victories of recent weeks. Battles were won and lost, but nobody was too scared to fight them. As long as we have an engaged civil society, and we resist those who would close it down, our democracy will thrive.

* This first appeared in Business Day in September 2011

Entry Filed under: Anton Harber, Journalism