“One danger is that there may be a populist call for the introduction of referenda.
For instance, if down the road, the Constitutional Court was to rule that any proposed amendment to the constitution regarding the expropriation of land without compensation was unconstitutional, there might be a demand that the issue be put directly to the people. And, there are many within the governing ANC who might agree.”
There are many valid reasons for calling for a deepening of democracy in South Africa, despite the fact that it has regular free elections and constitutional mechanisms designed to promote public participation in lawmaking.
The major flaw in its system of government is often said to be the manner in which the electoral system – uninhibited open list proportional representation – has shaped its party system.
The usual complaint is that individual members of parliament or provincial legislatures are accountable to party bosses, rather than to the electors. Accordingly, there are often demands that the electoral system should be reformed via the introduction of constituencies. In that way, public representatives would need to be sensitive to the concerns of constituents, as well as to the demands of those above them in the party hierarchy.
But the call for electoral reform has constantly stalled, largely because list system proportional representation has guaranteed the ANC – which has governed the country since 1994 – majorities at national and most provincial levels. Thus, it is not in the party’s interests to change the system.
One danger of this is that there may be a populist call for the introduction of referenda. For instance, if down the road, the Constitutional Court was to rule that any proposed amendment to the constitution regarding the expropriation of land without compensation was unconstitutional, there might be a demand that the issue be put directly to the people. And, there are many within the governing ANC who might agree.
Superficially, the idea might have its attractions. Why should the Constitutional Court be entitled to frustrate the popular will? The answer is that, although referenda may have their place in the toolbox of democracy, (as in California, where referenda concerning a variety of matters are regularly put to voters at elections), they can be easily misused (as was proved emphatically by fascist dictators in Europe in the 1930s). However, we need to look no further than Brexit for an example of where a referendum has been arrogantly and thoughtlessly entered into with alarming consequences.
Brexit: a referendum for all the wrong reasons
Britain has got into the Brexit mess because of a longstanding division about membership of the European Union (EU) within the ruling Conservative Party. Then Prime Minister David Cameron made the fateful decision in 2016 to hold a national referendum on continuing membership of the EU, on the presumption that a “Yes” vote would win, and that this would silence his right wing for a generation.
His plan went terribly wrong. For a host of reasons, the electorate chose to give the political establishment a bloody nose by voting “No”, albeit narrowly: some 52% of those who voted, voted to leave the EU, 48% to stay.
Humiliated, Cameron resigned: Theresa May took over as PM and committed to negotiating Britain’s exit. Fatefully, she held an election to strengthen her hand, but lost her majority in parliament. After two years, the chickens are coming home to roost.
It’s not inconceivable that she will be able to edge the deal she has negotiated for Britain to leave the EU through parliament. However, most observers reckon that parliament will reject it, as it pleases neither the majority of “leavers” nor “remainers”. In which case, Britain is approaching a constitutional crisis.
One way out of the crisis, apparently gaining momentum, is for parliament to vote for the holding of another referendum. The justification put forward is that now the British people have had two years to gain a greater understanding of the consequences of leaving the EU, and that realistic options (no deal, May’s deal, further negotiation or stay within the EU) are now on the table, they should be entitled to decide.
However, if parliament opts for another referendum, it will have to do so over May’s head. She routinely calls the 2016 referendum
the greatest exercise in democracy in British history.
She insists that the referundum’s result must be honoured – despite the fact that domestically and internationally there is widespread opinion and evidence that Britain’s decision to leave the EU has turned out to be a terrible mistake.
Lessons for South Africa
There are four lessons South Africans can learn from the Brexit fiasco.
One, resort to referenda on highly contentious issues is as likely to deepen political polarisation as to resolve it.
Two, if referenda are to become part of a country’s democratic machinery, it is vital that their constitutional status is established prior to their use. In Britain, the constitutional status of referenda has never been established.
Britain calls itself a parliamentary democracy. But resort to referenda implies that popular sovereignty must trump parliamentary democracy. However, because Britain does not have a written constitution, it does not have a Constitutional Court to resolve the matter.
Three, it is vital to establish the rules for the game before referenda are used. In Britain, successive governments have failed to establish what sort of issues may be put to a referendum. Likewise, there has been a failure to consider whether referenda results should be determined by absolute majorities or requisite majorities. Should fundamental constitutional changes be effected with the support of just 50.1% of those who vote for them?
Fourth, should the results of referenda be considered final? What happens if it appears that voters want to change their minds? Would a repeat referendum be a negation (the overturning of a democratic result) or a reassertion of democracy (a going back to the people)?
All this implies that referenda should not be lightly entered to without careful consideration. South African are often frustrated by their politicians and might like to overrule them. Indeed, there is probably a popular majority for such issues as bringing back capital punishment, despite the Constitutional Court having ruled the latter unconstitutional.
Referenda could have their place under South Africa’s constitution, but only if they deepen constitutional democracy, and don’t undermine it.