The apparent secession of the abaThembu nation from South Africa after an announcement by the tribal King Buyelekhaya Dalindyebo presents South Africa with a peculiar constitutional crisis. The National House of Traditional Leaders (NHTL) was ostensibly created to avoid such problems. Set in motion by Chapter 12 of our constitution, the NHTL has quickly turned into a toothless “House of Lords” which merely burdens the taxpayer and gives us absolutely nothing in return.
Reconciling traditional authority with a modern democracy is perhaps an impossible task. The problem of monarchy (based as it is on ancestoral affiliations not the vote) within the boundaries of a constitution which enshrines the rule of law and the rights of citizens to equality and various freedoms, is one which many scholars have been keen to avoid. Doing so raises many problems about the role of hereditary chiefs versus the natural rights of the citizen. Europe did not go through bloody revolutions for nothing, and very few monarchs have ever survived with anything like the kind of absolute authority that today’s abuThembu are now claiming.
Nevertheless, the absurd move to restore an ancient monarchy along with the rejection of modern democracy and the franchise in order to escape being subject to South Africa’s legal system and the rule of jurists can be seen in the latest secessionary saga. Dalindyebo apparently wants to escape charges implicating the royal abaThembu house in culpable homocide and a prison sentence. Time to discuss whether or not our constitutional framework is essentially flawed.
Would South Africa be better off without the NHTL? Would a Senate be more value for money? Is our system of jurists actually popular in the the absence of a jury?
Most democrats will argue that the real reason one has a Senate, is to insure continuity with the past and to avoid the problem of Lordship. Administrations come and go. The day to day infighting of party politics assume a level of fluidity with the legal process that the Westminster system cannot guarantee. The only reason the Westminster system (in which one house of parliament is the seat of power) actually works, is because there are usually other focal points, a presidency, a system of jurists, to remind politicians that certain traditions and laws exist and these laws exist contemporaneous with society.
We have already seen in the past decade, how a shift from the left to the right and the rise of the center conservative movement in the country is creating chaos and uncertainty in our country.
Radical democrats who none the less shun the liberal Westminster system point to a Senate as a better method of retaining the expertise of a country’s politicians, by offering them some form of job protection, which in turn keeps them off the streets and out of trouble. Moreover, a Senate is good place to send the nations old judges. Better to have aging politicians of the likes of Kader Asmal asleep in a Senate, than to have them jetting around the world tethered to large corporations. Again, if jurists are contantly deposed by the various administrations, they cease being of any value to the national discourse.
The broad consensus which created the new South Africa and the second Republic, is no longer apparent. Our sunset jurists have moved on and failed to extend democracy to the ordinary citizen. In essense, our legal system is an exclusive club inhabited by professionals who believe in a meritocracy for the few. Our system has resulted in Capitalism for the privileged, and Socialism for the elite.
A jury system in which 12 good men and women, gets to participate in the justice system, counterbalances the authority of professional jurists who are in danger of becoming yet another layer of hereditory lords in a scheme which is as open to corruption as any other. In fact lordship without providing for the democratic rights of subjects is nothing more than tyranny.
The taxpayers money would therefore be better spent financing the extension of democracy via a jury system along with a second House of Parliament, a Senate, than paying for the de facto seccession of the abaThembu people. What price will the resulting case extract from our nations coffers? If anything this splintering and fractious move, merely proves what we have long expected. The traditionalists i.e monarchists are not being included in the national debate and we are all alienated from each other as a people. Furthermore, the HTL has not resulted in cooperative government, but has instead bolstered corruption and authoritarian moves which have now come to a head. So is it too late to go back to the drawing board? Spend the billions demanded by the abuThembu on real democracy, a proper justice system that includes a jury, and a Senate.
NOTE: A political party calling itself the Cape Party, has been launched on Facebook. One of its goals is the political independence or secession of the Cape Province. The party has already attracted more than 1000 members and has spoken out against the appointment of John Qwelane as Ugandan ambassador.