'Our constitution does not work'

[Albereth]

I think you're the one missing the point, in SA we vote for a party. Then the party selects the people to become MPs.

Not quite - yes, a party is voted for in a proportional representational manner. The lists are already prepared before the election and a line is drawn based on the vote percentage.

The expectation is then that those people will now represent the people of the country in parliament - and the thing is that they don't. They become mindless sheep that vote along party lines. Yes, it would be stupid to think that it wouldn't work this way in reality anyway but let's take the Scorpions as an example.

Polokwane decided that the Scorpions should go, not the people of South Africa, not parliament as the representative of the people of South Africa. It was decided by a minority that have a vested interest (gravy train or otherwise) in having Zuma as president. If the constitution was working propoerly a portfolio committee in parliament would have determined whether the Scorpions were a good thing or not and a resolution would have arisen from parliament to restructure the Scorpions in a manner than included all of the people (through their representatives). No, we got a bunch of loons deciding that they have to go. Public participation, please! Any petition that you signed was discarded anyway. So tell me how your constitutional rights were being protected?

 

[oronte]

@Turiko: Thank you for clarifying, no problems with your statement now.

@Generator Man: You're not necessarily wrong but it might help you to understand that in democracies you either select the individual (like the USA) because you believe the state should be ruled by one person on the postive side if that person is a good president they can do a lot more by themselves, on the other hand if that person is an idiot (eg. Bush) they can do a lot of damage. In SA we vote for a party because we want to spread those decision making abilities around and curb the excesses. Both ideas are right but we simply chose the second one.
The ANC could have chosen to have a national vote to decide who its president should be, but they didn't (and nor have any of the other parties) because it's expensive and the perception is that only senior members are equipped to make that decision (aware of party's vision, etc). I wouldn't worry about electing a president though, ultimately the president has very little power (the last year has proved that). If you don't like the ANC NEC ruling then vote for someone else, because as a citizen that's where your power lies. The best solution is to spread the power around, if the ANC don't have such a clear majority then they have to get other parties to agree on little issues like firing the president (Mbeki didn't put up a fight because he had no chance of winning). So diversify the vote.

 

[Albereth]

So, vote for a party that you think is less likely to do something like that.

And Albereth, yes parties and their personnel change. The same thing has happened in the UK. And in Israel and Japan in the last week.

It's far from ideal, but at least we know we have an election in the next 6-7 months. Short of having elections more frequently, how do you suggest we deal we things like this?

Dealing with matters like this is quite simple - the candidates stand as representatives of a constituency. That way the interests of the people are protected, not the interests of the party. Floor crossing becomes a non-issue, you want to change sides, have a by-election and let's see what your constituents think of that.

 

[Albereth]

The general population at branch level nominates the party candindates. Further to that they send representatives to the national conference with a mandate as to how to vote.
You don't have to be part of the NEC to have your say since the same NEC is an elected body.

Party members at a branch level decide - not the general population. The general population only participates in the general election - not in party structures unless they are members.

And right now having your say in the ANC is quite dangerous - ask Shilowa.

 

[chiskop]

For sure - that is one thing that I would agree is flawed with our constitution, I would rather see a constituency-based system.

 

[oronte]

Not quite - yes, a party is voted for in a proportional representational manner. The lists are already prepared before the election and a line is drawn based on the vote percentage.

The expectation is then that those people will now represent the people of the country in parliament - and the thing is that they don't. They become mindless sheep that vote along party lines. Yes, it would be stupid to think that it wouldn't work this way in reality anyway but let's take the Scorpions as an example.

Polokwane decided that the Scorpions should go, not the people of South Africa, not parliament as the representative of the people of South Africa. It was decided by a minority that have a vested interest (gravy train or otherwise) in having Zuma as president. If the constitution was working propoerly a portfolio committee in parliament would have determined whether the Scorpions were a good thing or not and a resolution would have arisen from parliament to restructure the Scorpions in a manner than included all of the people (through their representatives). No, we got a bunch of loons deciding that they have to go. Public participation, please! Any petition that you signed was discarded anyway. So tell me how your constitutional rights were being protected?

This is not the fault of the constitution but, as someone has already said, the fault of voters for giving one party too much power. Because the ANC have a two thirds majority they can do whatever they want (including ammend our constitution). No party, no matter how great, should ever again have as much power as the ANC have right now. We're a young democracy and now we've all learnt a valuable lesson, hopefully we never forget it.

 

[Debbie]

For sure - that is one thing that I would agree is flawed with our constitution, I would rather see a constituency-based system.

An entirely constituency-based system, had one been in place in the previous elections, would have resulted in the ANC receiving more than 80% of the "vote"/candidates in parliament. Absolutely constituency would be worse than absolutely proportional representation. Can you just imagine the gerrymandering we'll see should any kind of constituency-based system be introduced. Not that I'm against it - I'm for a mixed electoral system - mixed how is another story (can get pretty 'messy' from a statistical pov).

 

[Albereth]

This is not the fault of the constitution but, as someone has already said, the fault of voters for giving one party too much power. Because the ANC have a two thirds majority they can do whatever they want (including ammend our constitution). No party, no matter how great, should ever again have as much power as the ANC have right now. We're a young democracy and now we've all learnt a valuable lesson, hopefully we never forget it.

It is a fault of the constitution - I really don't have an issue with the way people vote - that is their right, and they have the right to be silly . I say the constitution has failed because parliament has been usurped. The constitution should prevent that from happening.

And right now, even if the ANC only had 50% of the seats in parliament, we'd still have the NEC (which have nowhere close to half the people in the country voting for them) calling the shots.

 

[kingmonty]

The general population at branch level nominates the party candindates. Further to that they send representatives to the national conference with a mandate as to how to vote.
You don't have to be part of the NEC to have your say since the same NEC is an elected body.

Not quite: only members at branch level - not general population...

 

[chiskop]

An entirely constituency-based system, had one been in place in the previous elections, would have resulted in the ANC receiving more than 80% of the "vote"/candidates in parliament. Absolutely constituency would be worse than absolutely proportional representation. Can you just imagine the gerrymandering we'll see should any kind of constituency-based system be introduced. Not that I'm against it - I'm for a mixed electoral system - mixed how is another story (can get pretty 'messy' from a statistical pov).

Hell, we don't even need a constituency-based system to see gerrymandering.

But once again, that is because one party holds too much power.

Yes, the constitution is supposed to regulate power. That's why you need majorities for some things and two-thirds majorities for others. If you set that bar too high you end up with a constitution that can never be changed, and we don't want that. We need a constitution that can be adapted - the problem is that one party has enough power currently to be able to do that - and that is no good.

 

[sox63]

Not quite: only members at branch level - not general population...

Which begs the question, if people wanted to have a bigger say in who becomes president, why not join the ANC?

 

[oronte]

It is a fault of the constitution - I really don't have an issue with the way people vote - that is their right, and they have the right to be silly . I say the constitution has failed because parliament has been usurped. The constitution should prevent that from happening.

And right now, even if the ANC only had 50% of the seats in parliament, we'd still have the NEC (which have nowhere close to half the people in the country voting for them) calling the shots.

But is it the fault of the constitution? It has put in a number of checks and balances and at the end of the day it leaves it up to the citizens, the voters to make the final decisions. If something unconstitutional is happening go to the constitutional court (also a good reason to fight for the independence of our judiary). Someone said all political systems are flawed, democracy is just the least flawed of them all. As for the NEC: the power has to come from somewhere or nothing would ever get done. It's hardly perfect, but it works if voters play their part.

 

[JungleBoy]

Which begs the question, if people wanted to have a bigger say in who becomes president, why not join the ANC?

Good point seeing that membership is open to the general public

 

[Albereth]

But is it the fault of the constitution? It has put in a number of checks and balances and at the end of the day it leaves it up to the citizens, the voters to make the final decisions. If something unconstitutional is happening go to the constitutional court (also a good reason to fight for the independence of our judiary). Someone said all political systems are flawed, democracy is just the least flawed of them all. As for the NEC: the power has to come from somewhere or nothing would ever get done. It's hardly perfect, but it works if voters play their part.

Take away the constitution, pretend it doesn't exist. Now tell me, would we have a different outcome?

And just how do you go to the constitutional court? That has been placed beyond the means of Joe Citizen.

And if you want to just have a look at some of the words in the constitution - how do you ever think that discrimination is fair? How can we have a constitution that denies the death penalty yet allows abortions?

 

[oronte]

Take away the constitution, pretend it doesn't exist. Now tell me, would we have a different outcome?

And just how do you go to the constitutional court? That has been placed beyond the means of Joe Citizen.

And if you want to just have a look at some of the words in the constitution - how do you ever think that discrimination is fair? How can we have a constitution that denies the death penalty yet allows abortions?

If you take away the constitution, you have nothing. That makes no sense, everything would be different, we'd have no system of government period. We would have no rights and forget about the judiary. I concede it is a difficult and expensive process going to constitutional court but you can lobby for funds from wealthy patrons (hardly ideal, I know). I'm not getting into an abortion-death penalty debate, I think it's enough to say that's your opinion, and it is a debatable point, as there are logical arguments for the supposed contradiction to exist.

 

[Albereth]

If you take away the constitution, you have nothing. That makes no sense, everything would be different, we'd have no system of government period. We would have no rights and forget about the judiary. I concede it is a difficult and expensive process going to constitutional court but you can lobby for funds from wealthy patrons (hardly ideal, I know). I'm not getting into an abortion-death penalty debate, I think it's enough to say that's your opinion, and it is a debatable point, as there are logical arguments for the supposed contradiction to exist.

Interesting thta you say you have nothing - the UK does not have a constitution and it sort of seems to work. But my point was, and it did assume that we'd have some semblence of order, that the fiasco we have at the moment would still exist. The constitution does nothing to protect the interests of the people through its representative, parliament.

You don't need to enter the debate about pro-life or not. But try and understand some of the reasoning giving in justifying why the death penalty was abolished. Chaskalson said that wealthy people could afford better lawyers so were more likely to avoid the death penalty. This, he said, made application of the sentence arbitary and therefore unjust. But the same could be said of any case - I get a better lawyer so instead of 5 years in jail I serve 1 - that is also arbitary, so why haven't we abolished jail terms.

The same arguement could be extended to the unborn. You mother is wealthy therefore she can afford to raise you, you live. The next unborn's mother is poor, she can't afford it, it is aborted. Seems just as arbitary to me.

Maybe this last bit doesn't necessarily define what makes for a good constitution, but the some of the thinking behind ours is seriously flawed and that makes you wonder what else is wrong. And the means by which it was created - it was a compromise in part.

What needs to be fixed? The parts that don't allow parliament to function in the way in which it is meant to.

 

[TheHiveMind]

Our constitution would work if anyone cared about upholding it.

 

[oronte]

Interesting thta you say you have nothing - the UK does not have a constitution and it sort of seems to work. But my point was, and it did assume that we'd have some semblence of order, that the fiasco we have at the moment would still exist. The constitution does nothing to protect the interests of the people through its representative, parliament.

You don't need to enter the debate about pro-life or not. But try and understand some of the reasoning giving in justifying why the death penalty was abolished. Chaskalson said that wealthy people could afford better lawyers so were more likely to avoid the death penalty. This, he said, made application of the sentence arbitary and therefore unjust. But the same could be said of any case - I get a better lawyer so instead of 5 years in jail I serve 1 - that is also arbitary, so why haven't we abolished jail terms.

The same arguement could be extended to the unborn. You mother is wealthy therefore she can afford to raise you, you live. The next unborn's mother is poor, she can't afford it, it is aborted. Seems just as arbitary to me.

Maybe this last bit doesn't necessarily define what makes for a good constitution, but the some of the thinking behind ours is seriously flawed and that makes you wonder what else is wrong. And the means by which it was created - it was a compromise in part.

What needs to be fixed? The parts that don't allow parliament to function in the way in which it is meant to.

My point is that you seem to be arguing against the constitution as a whole, rather than defining what about it needs to be changed. Of course its flawed, all constitutions are flawed, all governments are flawed, all human beings are flawed. It depends on your point of view, so the constitution has to try to please as many people as possible and be flexible enough to change if the majority believe it's necessary.

A constitution may not be important in the UK, but we don't live there. For most of SA's history people have lived with their own cultural group (eg. Xhosa, Zulu, etc.) and then apartheid came along and entrenched that idea. We don't as a country have a lot of experience of living together and agreeing on things, also we're a very diverse society. The UK is comparatively not (well until recently) and for most of it's history the country has bowed down to royalty. We don't have a single King or Queen in SA and there are many groups in our country who have never recognised royalty - the point is that the UK may not need a constitution for historical reasons, we do. Although the day may come when it does (who knows).
Your arguments on the death penalty and abortion seem to be economic and I know you know there are many more arguments to be made there. Ultimately those laws can be changed ether way and the constitution allows for that possibility.
I don't think you'd want to 'fix' the constitution, but if you have a better system, let's hear it. Compromise is exactly right, there is no absolute right or best constitution, but personally I think we've got a pretty good one. You might disagree and that's all right, but you've got to do more than simply disagree, you have to come up with a better solution that will keep most people happy and is still manageable.

Our constitution would work if anyone cared about upholding it.

Um... that would be you and me. We're the ones who uphold our constitution.

 

[icyrus]

Compromise is exactly right, there is no absolute right or best constitution, but personally I think we've got a pretty good one.

The South African constitution was fatally flawed from the moment they enshrined discrimination in it.

 

[Albereth]

My point is that you seem to be arguing against the constitution as a whole, rather than defining what about it needs to be changed.

I did say what needed to be done to 'fix' it. Give power to parliament.

Your arguments on the death penalty and abortion seem to be economic and I know you know there are many more arguments to be made there. Ultimately those laws can be changed ether way and the constitution allows for that possibility.
I don't think you'd want to 'fix' the constitution, but if you have a better system, let's hear it. Compromise is exactly right, there is no absolute right or best constitution, but personally I think we've got a pretty good one.

I know you didn't want to get into an arguement about the death penalty but too late. My arguements about the death penalty are not about economics - those are the arguements of the contitutional court.

Just another thought - any changes to the constitution must, by definition, be unconstitutional.

I mentioned my 'fix' for the constitution above - and you can add the parts about fair discrimination to that list. The manner in which people are elected needs to change - that has nothing to do with the constitution. The constitution needs to protect my rights so if you, as a member of parliament, think that you are going to change parties without going through a by-election, guess again.

Debbie muttered something about the situation being worse if we had absolute consituency based voting. Maybe more ANC candidates would get in but I would hope that they would be free-thinking. Right now every one of them votes like a drone and that has put the power in the hands of the few on the NEC. And as I have already pointed out, that body is most certainly not representative of the people of the country.

But your turn - tell me what is good about our constitution.