In his eulogy to Former President Nelson Mandela, US President Barack Obama said the following of Nelson Mandela: “he would erect a constitutional order to preserve freedom for future generations…a commitment to democracy and rule of law ratified not only by his election, but by his willingness to step down from power after only one term …Mandela demonstrated that action and ideas are not enough.  No matter how right, they must be chiseled into law and institutions”. In an earlier visit to South Africa, addressing young people at a University Hall in Soweto Obama also said that “Africa should now focus on building institutions of leadership” than persons in leadership positions.

In this quotation, Obama confirms the centrality of institution building and respect in state formation. In positioning Nelson Mandela as the symbol of South Africa’s resolve to establish institutions that will undergird its democracy, Obama foregrounds that ‘action and ideas are not enough…unless they are chiseled into law and housed in institutions’ of leadership. Such institutions become a critical link between civil society aspirations and party political ideology.

The fight for a democratic South Africa in which all are not only equal before the law but are guaranteed protection against the possibility of such an equality being systematically eroded through executive action or equivalent, would have been incomplete without institutionalized checks and balances. The idea of freedom from apartheid and colonialism would be incomplete unless it was or is institutionalized to prevent a future resurgence of an equivalent, however disguised.

The Constitution drafters, predominated by a near 75% majority of anti-apartheid forces, arguably led by the ANC ‘as the dominant liberation movement at that time’, projected a horizon beyond narrow party political interests and anchored the new South Africa on the pillar of Constitutional Democracy mediated through and/or by an independent judiciary.

This was, and still is, a marked departure from the post liberation trend of creating institutions for leaders to use, to a dispensation that creates institutions that will provide leadership to those that are deployed therein. In this the founding parents of this democracy delinked the legitimate and yet variously questioned majority rule, a condition commonly found in transitional democracies charged with the responsibilities of redress and post conflict reconciliation, from a commitment to democracy and rule of law. The delinking meant that at some moment in the future of the then envisaged democracy an obligation to defend the ideals that underpins the Constitution was imposed on those entrusted with its implementation. The delinking was institutionalized through Chapter 9 institutions and an independent judiciary as well as polyvalently accounting Public Service Commission.

In respect of fiscal management the constitution drafters proffered a dispensation that positioned National Treasury outside the ‘prerogative dictates’ of the executive without decomplexing it from its political priority funding obligations. In doing this the management of the economy through fiscal policy made treasury a bridge between the interests of ‘business’ and the state; a towering feature confirming the neo-liberal character of South Africa’s political system.

The 1996 Constitution, by far the embodiment of South Africa’s post-apartheid liberal democratic aspirations, repositioned the marginalized majority as the ‘political mandating center’ of state management whilst it at the same time assured business of stability in so far as policy predictability and control in so far as the economic commanding heights are concerned.  

In this complex state formation and institutions of leadership creation process, South Africa was catapulted into a new orbit of democracy management that required a sophisticated and constitutionally formalized leadership breed never experienced before on our shores. Such sophistication procured for a national leadership which could balance state formation obligations within a rule of law refereed context and the national liberation promise that instructed the political socialization of the immediate breed of leadership post the internationally  acclaimed and Nobel Peace Prize crowned unusual Mandela-De Klerk National accord and Unity phase.

Without vitiating the democratic will of the voters as encapsulated in an elected National Assembly, institutions of leadership are therefore and by design value based and defining of the collective ‘correct default’ that society has chosen at the time of writing the Constitution. The provision that executive power will be subject to accountability enshrined in the management of the legislatures and further reviews by an independent judiciary is a safety valve for the ordinary person to keep in check those that are in power.

The Constitutional court judgment on the Nkandla matter, and as a sequel to the public protector’s ‘secure in comfort’ report, will be recorded in history as the ‘towering’ example that institution leadership builds a democracy. Barring the ‘value judgment character indicative of the personal orientation of the Chief Justice’ the procedural correctness in the judgment foregrounded the substantial intents of the national accord and political emotion that defined South Africa as we know it today.

The question is where to from here?

•in keeping with the tradition of the ANC to guide its members through a in-party policy process that defined most phases of the anti-colonial and anti-apartheid struggle, the ANC should define itself into a constitutional democracy South Africa has become. It must embrace into its internal processes the rule of all law,

•the traditional strategy and tactics document of the ANC should be retheorised to identify constitutionalism as a spoke in the wheel depicted in the generic emblem of the ANC thus institutionalizing the Constitution as a criteria to be accorded the status of being a loyal and disciplined member of the ANC. Reading constitutionalism as a core component of ANCness will introduce onto the ideological firmament a heightened adherence to the rule of law by deployees of the ANC,

•in dealing with the balance of forces the ANC should ideologically migrate into the liberal complex as institutionalized in the civil society arena of political contestation. It should accurately characterize its context away from its anti-apartheid context to a party with nation building obligations, the liberal (neo- or otherwise) character of the South African constitution must be woven into ANCness,

•in keeping with the OR Tambo strategy of person to person diplomacy, the ANC should further migrate into the South African polity as an instructing context to its members, a weighted scale that balances interests of its members with those of society must be made a reality of being ANC

A success indicator of this migration will be the opening up of the ANC to the institutions of leadership is has ‘supposedly’ created in terms of a Mafikeng resolution to adopt the 1996 Constitution, a profoundly neo-liberal document. The ANC should accept its internal disputes to be mediated through the norming institutions created by the Constitution of the land. Leadership contestations and other contestations will, if subjected to the rule of law applicable to all who live in South Africa, have as a glaring dividend the embrace of the Constitution of the land and what it represents as the final arbiter, even before the Constitutional Court and/or Chapter 9 institutions pronounce.

In the Obama parlance, the chiseling of the Constitution of the land into ANC daily will make the ANC a morally attuned institution of leadership. Leaders that are elected into the ANC National Executive Committee will fall in line with what the ANC-as-an-institution dictates.

The court ruling should thus be seen in the context of strengthening South Africa’s institutions of leadership. The ruling ANC should henceforth be subjected to what the constitution provides. Normatively, South African democracy is defined in its Constitution. Prerogatively it is defined through its political parties, foremost instruments of state capture.

FM Lucky Mathebula (Dr.)
Th!nc Foundation
Research Associate: TUT.