The Executive and Democracy
When civil society languishes then sooner or later political parties will begin to languish as well, until, ultimately, they become degenerate ghettos whose only purpose is to elevate their members into positions of power … Partyocracy – that is, government by party secretariats and politburos has had a great tradition in this country since the nineteenth century, and unfortunately it threatens us today as well. After all, we are close to a situation now in which people are beginning to feel ashamed that they voted for a certain party, or even that they belong to it. That can only lead to the decline of democracy. Vaclav Havel, President of Czechoslovakia.
Many will remember the Air Bo-tswana privatisation saga in which parliament sought to stop the privatisation of the airline after Cabinet approved the deal. The question that arose then was whether parliament could direct Cabinet on policy matters by halting the privatisation. Opinions were as many as they were varied. In South Africa recently, that question arose though in a different context. It was on the occasion to welcome the new Chief Justice. Whilst President Zuma’s speech referred to the democratic mandate, it was not in fact an assertion of the power of the elected legislature. To the contrary, it was an assertion of the power of the executive as opposed to the legislature and the courts. This is what he said: “We respect the powers and role conferred by our Constitution on the legislature and the judiciary. At the same time, we expect the same from these very important institutions of our democratic dispensation. The Executive must be allowed to conduct its administration and policy making work as freely as it possibly can. The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote.”
As Judge Michael Kirby has pointed out, “In reality, in parliaments created after the Westminster model, the legislators are often, in fact, subordinate to the power of the Executive once they elect it. In our complex society the Executive, in turn, is often heavily dependent upon unelected ofﬁ cials.” In other words, it is not only the courts which must not interfere with the powers of the executive: it is also the legislature. What is to be made of the claim of the executive to have a mandate given by the people in a popular vote? The members of the Cabinet are not elected by popular vote. They are appointed by the President. The claim of the Cabinet to a democratic mandate can hardly be stronger than the claim of the legislature, which elects the President. And although the President is formally elected by the National Assembly, he is in truth the person who was chosen by the majority party, through its internal processes, as its leader. There is nothing unusual or offensive about this: we simply need to recognise the reality. And we should not be naïve about the fact that in reality, the President is accountable to his party, not to the National Assembly.
Under our Constitution, the President and Cabinet have the function of developing and implementing national policy. However, that does not mean that every policy which the executive develops and implements can claim a genuine democratic mandate. In government, the policy-making power is exercised by unelected ofﬁ cials. The most famous incident in our country of the courts declaring a policy inconsistent with the Constitution is, of course, the Guardian advertisement ban case. Courts have repeatedly, and rightly, drawn attention to the need for judges to approach policy questions with some respect. They repeatedly, and rightly, point out that in such cases the question for the court is not whether the policy is “right”, or whether it is the best policy, but whether it is a policy which is permissible under the Constitution. It would therefore be wrong for the executive to claim more power than other arms of government when properly speaking each exercise checks and balances over the other.