Maintaining Constitutional Order in the Western Cape

NEWS ARTICLE: How must the Western Cape government respond to a collapse in the South African constitutional order?

Maintaining Constitutional Order in the Western Cape

“The only thing necessary for the triumph of evil, is for good men to do nothing”.

As the constitutional drama has unfolded around the upcoming municipal elections, I have had much cause to reflect upon a conversation I had early last year. It was with a well-known public figure, who, like very many others, was supportive of Cape Independence in principle, but was not yet ready to say so in public.

An ardent constitutionalist, they felt that the Cape Independence Advocacy Group (CIAG), who I represent, faced an uphill task. Regardless of the merits of our position under international law, we would always be perceived both domestically and internationally as morally compromised. The world simply wasn’t yet ready to demonise South African democracy and the ANC

There was only one potential scenario which would change this, they reasoned - the breakdown of constitutional order in South Africa.

In such a circumstance, those driving an independence agenda would suddenly cease to be constitutional antagonists, a role which could then be foisted upon the ANC, and they could instead claim the mantle of protectors and defenders of the South African constitution.

I would argue that the South African constitution has long since assumed a paradoxical nature. Dr Corné Mulder, an expert on Constitutional law, once described it as the world’s best constitution before we then added provisos to just about every principle. A Yes but constitution.

Do we really live in a society based on non-racialism, under the supremacy of the constitution and the rule of law as the constitution sets out? How many of us truly believe South Africa belongs to all who live in it, or that every citizen is equally protected by law? Have we freed the potential of each person?

Foundations of Constitutional Order Failing

But if the degradation of the constitutional order has been a slow burning fuse, albeit one which accelerated markedly during the Zuma era, then in the third quarter of 2021 it was a bomb that exploded.

South Africans now have ample reason to suspect that the Independent Electoral Commission (IEC) is no longer independent but favours the ruling party. That the Judicial Services Commission (JSC) has been unduly influenced in the appointment of judges. That in the preparations for the 2021 Municipal elections there has been at the very least privileged information leaked from the Constitutional Court to the ANC, and collusion between the ANC and the IEC.

At the Zondo commission we have heard allegations that the intelligence agencies, under the command of ANC cadres, had established a slush fund to bribe judges.

Meanwhile the Minister of Police Bheki Cele was previously fired as chief of police for corruption, whilst the current chief of police Khehla Sitole is also accused of dishonesty. Should he ultimately be dismissed he will have become the sixth successive police chief to be forced out of office as a result of serious impropriety.

The Director-General of Correctional services, Arthur Fraser, already implicated in the judicial bribery slush fund, has now admitted he overruled the parole board to release his ally Jacob Zuma from prison on medical grounds, despite Zuma having refused to be examined by a doctor from the National Prosecuting authority.

A bribery cloud hangs over the speaker of parliament Nosiviwe Mapisa-Nqakula, and an enquiry into these allegations has allegedly been unduly influenced. The Judge President of the Western Cape John Hlope, and the Public Protector Adv Busisiwe Mkhwebane, are both facing impeachment.

I could carry-on ad-nauseum, but no self-respecting observer could reach any other conclusion than that the constitutional order has now essentially failed. If the independence of Parliament, the Judiciary, the Electoral commission and the Police are in question then what other conclusion is there?

All that remains is for Good men (& women) to decide how they intend to respond.

Constitutional Obligations of the Western Cape Government

And so I found myself thinking about last year’s conversation, the constitution, and Cape Independence.

As the party of provincial government, the Democratic Alliance (DA) has an obligation to the people of the Western Cape. The Western Cape is the only province with its own constitution. That constitution states that the province will endeavour to promote the development and a better quality of life for all its people through just and effective government. It affirms the values the province was founded upon, democratic values, responsible and accountable government, and the rule of law.

Perhaps most critically, the Western Cape constitution affirms its loyalty to the national constitution as opposed to its loyalty to the national government. In the event of a dispute between the various arms of government the constitutional court is the final arbiter.

The question is what happens if the independence of the Judicial Service Commission, and by extension the Constitutional Court, has been politically and ideologically compromised as has been alleged?

Is the provincial government of the Western Cape obliged to do nothing whilst evil triumphs? Evil in the form of a national government the people of the Western Cape did not elect, and who the majority of them have never voted for. Or rather, do the two constitutions place an obligation on the provincial government to protect democracy, accountable government and the rule of law? If necessary, even from the national government?

Referendum on Cape Independence

The recent Victory Research poll showed that 58% of Western Cape voters now favour a referendum on Cape Independence. Both the national and provincial constitutions make provision for the Western Cape Premier to call such a referendum.

The CIAG would argue that the Western Cape Premier is now morally obliged to democratically consult with the electorate who appointed him, and at whose pleasure he serves, to determine how they would like to respond to the breakdown of constitutional order.

It may well be that the only way by which the Western Cape government can preserve and adhere to the values of the South African constitution, is to break away altogether from a South Africa who has increasingly abandoned them.

This article was first published in the Daily Friend

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