I am honoured to be delivering the C.R. Swart Commemorative Lecture tonight, named after the University’s first Chancellor and a former State President. This lecture series started in 1968, my matric year, and 40 years on it is a great privilege for me to join a long list of distinguished speakers in addressing this forum. I am here in my capacity as the leader of the largest opposition party to speak in a lecture inaugurated to mark the establishment of a chair in political science at this university, so I presume that no disclaimers are needed when I say I will be discussing politics. In fact, the theme of my address is: “Opposition politics: past, present and future”.

 

Fourteen years after our first democratic election, we stand at a crossroads in South Africa. Many people are deeply concerned and with good reason.

 

But, despite many disturbing developments in recent months, we can still choose to take the high road to an open, opportunity society, in which we realise our rights and fulfil our obligations under the supreme law of the land: the Constitution. Alternatively, if we fail in this quest, we will take the low road to a closed, patronage-driven society.  

 

In closed societies, the rule of law and the sovereignty of the Constitution cease to count for anything. Instead, they are replaced by the rule of a cabal. What do I mean by “cabal”? It is a small, closed circle whose members aim to entrench their power and enrich themselves; an elitist faction accountable to no-one, and no law, but itself. A cabal typically justifies its self-serving actions and decisions in the name of the greater good, of which they are, of course, the sole arbiters and interpreters.

 

In closed societies, controlled by cabals, democratic rights and freedoms are systematically eroded; the space for debate and contestation is closed down, and opportunities are horded and exploited by the ruling elite to further its own interests.

 

In South Africa today we face a critical choice. It is a choice between a society in which the government sees it as its duty to protect everyone’s rights, or a government that sees its role as the selective dispenser of rights, usually on the basis of various arbitrary criteria, particularly political connections.

 

Along the high road, the law of the Constitution prevails; along the low road, the law of the jungle reigns, and might is right. Along the low road, one’s position in society is determined by one’s subordinate status to a leader or a leadership clique. Along the high road, it is protected in terms of a constitutional contract.

 

That is what the British jurist Sir Henry Maine meant when he wrote about the progression in modern civilisation, “from status to contract”. In the ancient world individuals were generally trapped in an immutable power hierarchy, bound by birth and tradition to groups that determined their social status and limited their choices and actions. In the modern one, individuals become autonomous beings free to make contracts and associations with whomever they please. A key role of governments in such societies is to extend opportunities so that more and more people can use their freedom, to improve their lives and achieve any position on the basis of hard work and ability, not the circumstances of their birth.

 

In my view, the single most important task of opposition parties going into the future is to ensure that we progress from status to contract; that we follow the high road to a constitutional society in which we all protect and promote each other’s rights to be the best we can be, individually and collectively.

Ten years ago, my predecessor as Leader of the Democratic Alliance, Tony Leon, addressed this forum on the subject of “The place and role of opposition politics and parties in South Africa”.

 

In fact, when he gave this lecture in 1998, the Democratic Alliance did not exist. The Democratic Party (DP), which he then led, was small. In the first democratic election of 1994, it won just 1.7% of the vote, and managed to gain only seven seats in the 400-seat National Assembly.

 

The DP attracted much less support than the other opposition parties. In that election, the National Party (NP) obtained 20.5% of the vote, and the Inkatha Freedom Party (IFP) took nearly 11%.

 

When Tony Leon spoke here in 1998, he said: “…I have set the interim goal for my party to become the second party of South Africa’s political realm. Not that we will forever be satisfied with the position. But one step at a time”.

 

It is notoriously difficult for opposition parties to make progress in countries that emerge from liberation struggles; the party of liberation symbolises the hopes and aspirations -- the very identity -- of oppressed people. In this context, opposition parties struggle to establish their legitimacy and right to exist. Where opposition does survive, it is often on the basis of competing group-based nationalisms, rather than on alternative visions and policies for the future of that society. It is no wonder that opposition in emerging democracies so often withers and dies. Trapped in minority group politics, associated with an old order, robbed of legitimacy, its supporters retreat and either seek association with the new patronage-based system or simply withdraw from the process altogether, thereby entrenching single party dominance controlled by the ruling elite of the majority group.

 

This could so easily have been South Africa’s fate: a governing party espousing one brand of racial nationalism versus an opposition espousing another brand of racial nationalism, permanently trapped in a dwindling opposition role because of demographics. A situation where the majority cabal was immune from the Constitution’s checks and balances to prevent power abuse, simply relying on racial mobilisation and solidarity to entrench their power, irrespective of performance. In fact, this still remains a risk to South Africa’s future unless we can win support for an alternative vision.

 

The dead-end of contesting racial nationalisms was the fate South Africa had to avoid if our Constitution was to mean anything. That is why it was critical for our predecessor party to attain the provisional but crucial goal of becoming the major alternative to the ANC. We did so in 1999 on a very modest component of the vote -- just 9.5% -- but a five fold increase over the election five years earlier. In 2004, the Democratic Alliance (DA), the party born from the merger of the New National Party (NNP) and the DP, added to these gains, securing 12.5% of all votes cast.

In large part, this growth was achieved by marshalling and consolidating the support of minority voters. Realistically, given South Africa’s history, and a liberation struggle lasting many decades, it was not feasible for an opposition movement to attract significant numbers of majority voters so early in our democracy. We had to face that reality. As Tony Leon remarked in his C.R. Swart lecture, “to remain effective, opposition parties need to consolidate support among their key constituencies, albeit minority ones -- for the time being”. This was necessary to ensure that minority constituencies did not withdraw from politics or public participation, as they have done in all failed democracies.

 

In societies that have undergone a transition from minority rule, and where there is a great diversity of races, classes, and ethnicities, one of the first symptoms of democratic failure is when minorities pull out of public life. The big shift that must occur if complex plural societies are to become constitutional democracies, is that all citizens, whether they associate themselves with minorities or majorities, must understand and claim their rights, and in particular, must respect and defend each others’ rights. 

 

Majority groups, who can dominate political systems by their weight of numbers, understandably take longer to embrace constitutionalism than minorities, who often know instinctively that the Constitution and the rule of law are their only armour against power abuse and arbitrary action by representatives of majority groups.

 

Unless a government understands that its role is to protect rights, not dispense rights, and unless a government understands that the institutions of state must remain independent of the ruling party, (and indeed limit the power of the ruling party), power abuse becomes inevitable. Power abuse, once it starts also increases exponentially. Being a member of a demographic majority offers no protection against power abuse by a small leadership cabal. Once power abuse has begun, it quickly becomes irreversible. Ask the majority of Shona-speaking people in Zimbabwe. They may have turned a blind eye to the massacre of the Ndebele in the 1980s because they assumed that the government would never turn on them. They were wrong.

 

The point about the indivisibility of rights and the irreversibility of power abuse was most famously made by the Lutheran Pastor, Martin Niemöller, who was imprisoned and narrowly escaped execution by the Nazis. He is most famous for his statement on the indivisibility of rights. He wrote:

 

First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.

Then they came for me
and by then there was no-one left to speak.

 

It is still difficult for many South Africans to envisage a South Africa where we speak up for each others’ rights. It is still usually accepted, for example, that Afrikaners have a duty, alone, to promote and protect their language and culture. This is a fundamental fallacy. Everyone must protect each others’ language and cultural rights (among all other rights) because these are constitutional rights, and constitutional rights are indivisible. 

 

Indeed, the most crucial role for the opposition in South Africa is to become the party for all the people who wish to claim their own rights, and protect the rights of others. This seems like such an obvious point but it is generally misunderstood. I was speaking about our vision to a film-producer the other day, who happens to be black, and he said to me: “Helen, I wish you would say these things for my people”. I said: “I say these things for everyone. The Constitution is there for everyone. When I speak about defending and claiming rights and preventing power abuse, I do not only speak for people who look like me”. It is at times like this that I realise what a long road we must still travel before the assumptions of constitutionalism become internalised in our society. And the role of the opposition is to lead that long march.

 

How best do we do this? There is only one way in politics and that is to mobilise support, to build a party that is seen as a viable and credible alternative for all South Africans; a party that can win elections and demonstrate open, accountable government in practice, and implement policy solutions that yield better results in improving the lives of all South Africans. That is what we have been trying to achieve in Cape Town and the other local authorities that we govern, and I know the results are starting to show.

 

Holding regular elections does not automatically mean a country can call itself a democracy. The true test of a democracy is whether power can change hands peacefully through the ballot box. If voters return the same party to power every election, irrespective of its performance, or if a dominant party refuses to accept defeat in an election, believing it has a divine right to rule, then checks and balances on power abuse become meaningless. Indeed power abuse becomes inevitable.

 

To prevent this, the DA must be able to challenge the ANC for power.  Defeating the ANC for its own sake is not the issue.   The point is to take South Africa out of the dead end of race mobilisation and contestation, to a real choice between alternative policies to create a better life for all.

 

This sounds obvious, but it is a monumental challenge.

 

It is far easier to demonstrate this in practice where we can win elections. But for the most part we have to build our base by doing an excellent job in our role as official opposition.

 

Far too many South Africans are still embarrassed by the concept and practice of a tough, muscular opposition. They believe in the politics of ingratiation -- as if this will achieve better results. It may make you popular with those in power, but it rarely changes anything. It is, as someone once said, like feeding steaks to a crocodile in the hope that it will become a vegetarian.

 

The role of the parliamentary opposition is to ask the difficult questions; to expose corruption and mismanagement; to hold government to account; to think ahead and to present alternatives on all policy issues.

 

 

However, the most important task of the opposition in South Africa today is to provide a rallying point for all those who understand that defending the Constitution is the greatest political imperative our country faces.

 

In the early- to mid-1990s, South Africa’s major challenge was to bring together political rivals, after decades of conflict, to negotiate a way in which a complex, plural society could live together in peace, without group domination and power abuse. Getting historical adversaries around a table, exchanging words and ideas rather than gunfire, was a remarkable achievement.

 

Even more remarkable though was the end result. We reached a consensus settlement, forged rather than forced, that did away with the sovereignty of Parliament, so open to abuse by a parliamentary majority able to pass any law it likes irrespective of its effects on others. We understood that being in a majority does not necessarily mean being right or being just; that power tends to corrupt and absolute power corrupts absolutely. So we replaced the sovereignty of Parliament with the sovereignty of the Constitution, requiring that a majority party’s decisions be tested against a Bill of Rights, with a Constitutional Court and a range of other mechanisms to prevent the abuse of power by a ruling majority. This was the essence of the revolutionary change that came to South Africa in the mid-1990s. It often seems as though the new ruling majority has not internalised the significance of this shift.

 

Of course, the Constitution, although it is internationally admired, was the product of compromise. As such, it is neither perfect nor pristine. But it is a good deal better than it might have been; and, again this attests to the crucial role of opposition in providing alternatives with sufficient muscle to force compromise.

 

One of the crucial moments in our constitutional negotiations came when both the National Party and the ANC proposed that the ten constitutional court judges should be appointed by the President and his cabinet. The Chief Justice, too, would be appointed directly by the President. If this had happened, it would have meant the ruling party effectively handpicking its own judges, rendering the most important safeguard of our rights subject to political manipulation by the ruling party.  

 

It was sustained opposition by a few negotiators, led by Tony Leon that saw this proposal jettisoned. The Democratic Party tabled a series of amendments – the effect of which was to create a Judicial Service Commission (JSC), whose members, comprising representatives from government, parliament, the judiciary, the legal profession and academia, would recommend judges for appointment by the President. The Judicial Service Commission was established in terms of Section 178 of the Constitution.

 

The creation of a Judicial Service Commission was by no means an ideal solution, but as a mechanism for judicial appointments, it is infinitely preferable to the model of direct political appointments so favoured by majority parties.

 

From the moment the Constitution was adopted, it became the opposition’s duty to defend it.  

 

When I spoke on a related theme at the University of the Witwatersrand, a student raised the following point:

 

“When people are living in poverty, they aren’t interested in constitutions.  They are interested in houses and jobs and services.  Constitutions and laws have no significance for them”.

 

This is a profound question, and my answer is this.  You cannot eat the law but you cannot have enough food for everybody unless there is law.  You cannot live in the Constitution but you will never have good housing for all unless there is a good Constitution.  Jobs and services for the poor will never come unless there is the rule of the law.

 

The rule of the law protects everyone but especially the poor and the weak.  In the jungle, the weak must always submit to the strong.  The dominant lion walks wherever he wants and everyone else must get out of his way.  That is the law of the jungle.  In constitutional human society, the weak have the same rights as the strong.  When the traffic light is red, the billionaire in his BMW must stop; when the light is green, the beggar on his bicycle may pass through.  That is the rule of the law. It has implications for every transaction in society.

 

The Constitution protects all of our liberties and guarantees equal rights for all, weak and strong, rich and poor.  The rule of just law is not some sort of ornament, not an embellishment on our civilisation:  it is the bedrock of our civilization.  Without the rule of law, we could never have developed our commerce, science, technology and art.  Without it, we would not have brick houses or clean running water in our homes or sewage works or electricity or flour mills and bakeries.

 

That is why it is so important to defend the Constitution.

 

To be sure, there are aspects of the Constitution we would like to change, but constitutional change should never be entered into lightly because of the importance of constitutionalism.

 

There is another reason why we should tread carefully, and that is because the ascendant faction in the ANC, grouped around the party president, Jacob Zuma, understands that it is the Constitution that stands in the way of absolute power. It is the Constitution that makes everyone equal before the law and limits power abuse. And there are increasing signs that Zuma’s faction does not like these limitations. There are very disturbing indications that he and his supporters increasingly regard the Constitution as a nuisance to be swatted away like an irritating fly.

 

In December 2006 Zuma said: “The ANC is more important than even the Constitution of the country”. That same month he pronounced: “Once you begin to feel you are above the ANC, you are in trouble”. Disturbingly, these remarks suggest an allegiance to “the higher law of the party”. In other words, what the party decides is superior to the rule of law. This usually refers to the will of the small cabal that controls the party which believes it has a monopoly on truth, insight and morality. Despite the disastrous legacy of this doctrine across the world, it has captured the fevered imagination of many; hence, Zuma’s fanciful claim that that “the ANC will rule South Africa until Jesus comes again”.

 

The higher law of the party is what a privileged group of individuals invoke when their narrow interests come into conflict with the Constitution. The higher law of the party leaves little room for opposition, both from within the ruling party or from opposition parties.

 

Speaking in Umtata last year, Zuma argued the country shouldn’t have opposition parties simply because there have to be opposition parties. This statement goes against one of the founding provisons of the Constitution, which notes that the Republic of South Africa is a “soveriegn, democratic state, founded on...a multiparty system of democratic government, to ensure accountability, responsiveness and openess”.

 

In fact, Zuma went further and said that opposition parties had no right to exist if they could not formulate better policies than the ruling party. Needless to say, according to Mr Zuma, the ANC has the right to decide whose policies are better. “If the ANC has the best policies”, he asked, “what is the problem?” “If everyone supports the ANC, then there is no problem. That is except if you want a debate at a university’s debating society, because no one has proposed better policies than us.”  

 

Of course, Zuma’s disregard for the Constitution is also motivated by personal factors. He faces a corruption trial and if he is found guilty and given a sentence of more than 12 months it will prevent his becoming the next President. His supporters are determined to make sure that does not happen, and they too have been making ominous sounds, profoundly at odds with our constitutional order.

 

On 16 June, the President of the ANC Youth League, Julius Malema said, “We are prepared to take up arms and kill for Zuma”.  On 21 June, Young Communist League national secretary, Buti Manamela promised that if Zuma did not become President, “there will be hell to pay”. 

 

Meanwhile, the ANC Secretary-General, Gwede Mantashe, told an ANC Youth League conference earlier this year that investigations against the Judge-President of the Cape High Court, John Hlophe, were “psychological preparation of society so that when the Constitutional Court judges pounce on our president we should be ready at that point in time”. He also said, “Our revolution is in danger; we must declare to defend it to the end.” Later he confirmed he was concerned about “counter-revolutionary forces”, including, in his view, the Constitutional Court, the United Democratic Movement, the IFP and the DA.

 

Taken together, these statements appear to form part of a strategy to smear and diminish the Constitutional Court because it threatens to uphold the rule of the law in the Zuma trial and so block his ascent to the state presidency.

 

Zuma’s backers are willing to subvert the institutions of the Constitution for the benefit of the ruling party. There is nothing unique about this. Almost every liberation movement has done the same thing after attaining power. Liberation movements make very bad democratic governments for one key reason: liberation struggles are about attaining power. Constitutional democracy is about limiting power. And no liberation movement seems willing to accept that.

 

 

The ANC like so many other liberation movements that try to become political parties, believes it has the monopoly on morality and a divine right to rule.  The quest for absolute power makes internal conflict for positions of power inevitable and vicious, and the ruling cabal then seeks to eliminate challenges to its control from within and without. It begins to use the instruments of the Constitution, not only against the opposition, but against challengers it faces inside its own party.

 

That is what we are seeing now: power-hungry individuals pretending they exemplify the liberation struggle, and invoking it to justify the seizure of constitutional instruments that are actually supposed to limit their power.

 

What is the role of the opposition in this case?  To summarise: our role is deceptively simple to describe but exceptionally difficult to fulfil. We must convince more and more South Africans that it is in their interests to protect the Constitution from the ruling party’s abuse of power. It is to persuade people that being in a demographic majority will not protect them from the consequences of power abuse by an increasingly small cabal that seeks to project its interests as the interests of a majority, and uses race mobilisation to disguise its real intentions. Our role is to offer real policy alternatives that provide real opportunities for all who are prepared to use them to improve their lives, in a society where there is a link between effort and reward. It is to win elections where we can, and to demonstrate our policies in action. We must be a catalyst that brings together all those who understand that limits on power are essential for the welfare of the people, so that South Africa can become a sustainable democracy with a growing economy.

 

In the medium term, as the consequences of the ANC’s assault on the Constitution are felt more widely, the remarks I am making tonight will seem obvious. But unless we hear them and act on them now, it could be too late. This is why the DA’s goal is to realign politics and re-shape the configuration of political parties, drawing a clear line between those who believe in constitutionalism and those who do not.

 

This realignment will not hinge on opposition parties alone, since it is not just opposition parties that care about the Constitution. There are many in the ANC who want to defend the Constitution and who are appalled by the growing trend of anti-constitutionalism in their own party. But it will take them a long time to make the essential break because allegiance to a liberation movement becomes part of one’s identity and the bonds are strong.

 

It is therefore vital to form a coalition of opposition parties which understands our joint responsibility to defend the Constitution, to offer hope to voters and bring them out in large numbers in next year’s election. I and my party have been working hard behind the scenes to secure this outcome.

 

In truth, the response to this call has been limited. One opposition leader remarked that such a coalition is a bad idea because we shouldn’t gang up on the ANC. I was muted in my response to this statement because it is not appropriate for opposition parties, at this crucial juncture, to waste time and resources fighting each other. But I thought, at minimum, I had to point out how truly ludicrous it is to suggest that an attempt to curb the power of a party that already has a 74% majority in Parliament amounts to “ganging up”. This kind of response demonstrates to me that, despite all that has happened, some parties still have not fathomed what the role of opposition is in South Africa today.

 

I suspect that the real reason for this lukewarm response is that the leaders of individual parties do not wish to abdicate their own fiefdoms. After all, it is easier – and far less risky – to defend a dunghill than it is to move a mountain.

 

Whatever happens at the 2009 election, we must strive to prevent the ANC from attaining a two-thirds majority because this is the essential minimum required to protect the Constitution, and prevent a shrinking cabal entrenching itself in power.  If we can do this, we will prevent South Africa from going down the well-trodden path of centralisation, cronyism, corruption and criminalisation that has been the lot of many failed states on our continent that could not make the transition from a liberation struggle to a stable constitutional democracy.  

 

Apart from our role as opposition, we must build on our record in government. We started this process by winning power in Cape Town in 2006 and in other local authorities, primarily in the Western Cape. We need to build on this base in 2009, by winning the Western Cape and showing what aligned co-operative governance can achieve between a provincial administration and local authorities. We are determined that people should experience what difference open, opportunity-driven governance makes in their lives. An opposition victory in at least one province will also help the ANC to get used to losing elections, so that we do not face the spectre of a Kenya or a Zimbabwe, where the so-called liberation parties refused to accept defeat at the polls, and used political blackmail and threats of violence to stay in power.   When that happens, it is clear that constitutional democracy has failed.

 

As Tony Leon put it in 1998, it is one step at a time. If we achieve our goals in 2009, the next target is the local elections of 2011, when we must aim to win power, alone or in coalitions, in major metropolitan areas throughout South Africa. If we succeed in doing this, and with the chaos in the ANC predictably continuing as the power-mongers continue their internal struggle with the constitutionalists, the stage will be set for a fundamental realignment of politics to bring together all those who understand that respect for the rule of law and the Constitution, is the only thing that will prevent the implosion occurring in Zimbabwe today.

 

I have no doubt that by that time, the disastrous consequences of Zuma’s doctrine of the “higher law of the party” will be far more obvious to many more people and an ANC loss at the polls will be a realistic prospect by 2014.

 

The ANC can be dislodged from power. The Constitution can prevail. It depends on us. We can learn through our own bitter experience, or we can use the opportunity of learning from the experience of others, and apply the relevant lessons to our own situation. It is my role, and the role of my party, to ensure that there is no South African who can one day say: “I did not know. Why didn’t anyone warn us?” We have to make the choices crystal clear. We are and we will keep on doing so. But then it is over to every citizen, to register as a voter, to go out on election day, and to make that crucial choice. After all, in a democracy, people get the government they deserve.