Are we on a slippery slope to authoritarianism? It’s a valid question to ask since both the Cosatu and the national constitutions have been undermined. And they were both, in their own way, flag bearers of the democratic promise of the new South Africa.
In the first place, had the rule of law been applied within Cosatu as much as two years ago, a national congress would already have debated — and decided on — the future of general secretary Zwelinzima Vavi and of the National Union of Metalworkers (Numsa). So while the majority of the Cosatu executive wants them out, the constitution dictates that it is up to all the members to decide. They have not been given the chance.
And had the the government adhered to the rule of law as dictated in the country’s justly lauded constitution, along with an order of the high court, Sudan’s President Omar al-Bashir would be under arrest and awaiting transportation to the International Criminal Court (ICC) to answer charges of war crimes.
Neither Cosatu nor the government adhered to the rules, revealing that constitutions can become no more than worthless pieces of paper. And there was also a great irony in the fact that the South African constitution, with its requirement — under Chaper 14 — to obey ratified international law, was undermined on June 15.
This was the 800th anniversary of the signing of the Magna Carta, the “Great Charter”, that removed the arbitrary rights of an English king. It is perhaps the oldest such document in existence and is hailed as the basis for many subsequent and increasingly democratic constitutions around the world.
But the whole idea of the rule of law, of everyone in society being, at least in principle, equally bound to follow the rules agreed and laid down, dates backs thousands of years and across the continents of the world. However, even today, constitutional democracy provides only a veneer of equality, even if it holds out the promise of much more.
French author, Anatole France summed this up: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” In other words democratic decision making and equality under the law are often meaningless in grossly unequal societies where many have no choice as to how and where they live.
This is part of the global reality that gave rise to often intensely democratic organs established by the sellers of labour to resist the exploitation and inequality inherent in the system. These trade union constitutions usually stress worker control, with leadership answerable to, and recallable by, the membership.
In principle, Cosatu qualifies on this score. However, in practice, important provisions of the constitution have been ignored and were justified by a distortion of constitutional provisions. In this case, however, the remedy lies with the members of affiliated unions. It is they who can either acquiesce in what has happened or act one way or the other to effect real change.
Government and its relationship to the ICC and the Rome Statute that established it is in much the same position: it ignored rules to which it agreed and is bound by. And, as in the Cosatu case, provided a spurious justification.
According to the government, the country has an “immunity law” that supercedes its obligations under the Rome Statute. Ironically, this justification was made in the Netherlands, home of the ICC by Vusi Koloane, now ambassador to that country. He was the man who took responsibility for the now notorious “Gupta plane” episode at the Waterkloof military air base in 2013.
Government can now walk away: resign from involvement in the ICC. Cosatu unions may do the same, by splitting. Or they can maintain unity after a properly constituted and democratic congress that admits all affiliates and accepts the “unity in diversity” provisions in the constitution.
But precedents have now been set that undermine the rule of law. This is a real cause for concern.