Political rights since 1994 Focus: It’s my party (and I’ll do what I want to)?: Internal party democracy and section 19 of the South African Constitution

Political rights since 1994 Focus: It’s my party (and I’ll do what I want to)?: Internal party democracy and section 19 of the South African Constitution

Authors Pierre de Vos

ISSN: 1996-2126
Affiliations: Claude Leon Foundation Chair in Constitutional Governance, Department of Public Law, University of Cape Town
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 30 – 55

Abstract

South Africa’s democracy has both representative and participatory elements. The participatory aspect of democracy enhances the civic dignity of citizens by empowering them to take part in decisions that affect their lives. However, the overbearing role that political parties play in the South African democracy runs the risk of limiting the ability of citizens to participate effectively in decisions that impact on their lives. This is because the leaders of political parties (especially of governing parties) may wield enormous power and influence inside their respective parties and in the legislature and executive. Where the ordinary members of parties have little or no direct say about the formulation of the policies of the party they belong to or the election of its leaders or those who will stand for election as public representatives at national and provincial level, the ability of such members to participate in democratic processes and decisions are limited. To facilitate the participation of party members in the activities of a political party to ensure the enhancement of their civic dignity s 19(1)(b) of the Constitution guarantees the right of every citizen freely to make political choices, including the right to participate in the activities of, or recruit members for, a political party. In Ramakatsa v Magashule the majority of the Constitutional Court affirmed the importance of the right of party members to participate freely in the activities of the political party they belong to and also found that the constitutions of political parties have to ensure this happens. Provisions of a political party’s constitution can be declared invalid if it fails to comply with the provisions of the Bill of Rights (including s 19(1)(b)). This article contends that Ramakatsa can be interpreted to place a positive duty on the legislature to pass a ‘party law’ that sets minimum requirements to protect the democratic participation of party members in the activities of the party — including about the formulation of party policies, the election of party office bearers and the selection of the party’s candidates for election as public representatives.

Political rights since 1994 Focus: Towards participatory democracy, or not: The reasonableness approach in public involvement cases

Political rights since 1994 Focus: Towards participatory democracy, or not: The reasonableness approach in public involvement cases

Authors Ngwako Raboshakga

ISSN: 1996-2126
Affiliations: Researcher at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), a centre of the University of Johannesburg
Source: South African Journal on Human Rights, Volume 31 Issue 1, 2015, p. 4 – 29

Abstract

Sections 59(1)(a), 72(1)(a) and 118(1)(a) of the Constitution require the national and provincial legislative bodies to facilitate public involvement in their legislative and other processes. This article considers the jurisprudence developed by the Constitutional Court thus far in the five cases concerning the facilitation of public involvement in legislative decision-making processes. The court adopted a reasonableness standard of review for purposes of determining whether, in each case, the constitutional obligation to facilitate public involvement has been met. Drawing on literature and a comparison with work in the field of socio-economic rights, I argue that to be meaningful and effective, a reasonableness enquiry requires a substantive engagement with the purposes underlying the relevant provision[s] in the Constitution. In the first two public involvement cases, I contend that the court’s development of the reasonableness enquiry was promising, as it sought to engage substantively with the understanding of democracy that is envisaged in the Constitution. The court developed an approach to the use of reasonableness, as a standard of review, in a manner that achieves participatory democracy, as an element of South Africa’s deep vision of democracy envisaged in the Constitution. However, unfortunately, the last three public involvement cases tend to show the court as working with a compliance- or process-oriented reasonableness enquiry. The court here evinces a weak engagement with the purposes and values which the constitutional obligation to facilitate public involvement seeks to achieve. I argue that, for the future development of jurisprudence and our constitutional democracy, the court should revert to its earlier coherent and constitutionally principled approach.

Book Review: Human dignity: Lodestar for equality in South Africa (2012)

Book Review: Human dignity: Lodestar for equality in South Africa (2012)

Authors Des Gasper

ISSN: 1996-2126
Affiliations: Professor of Human Development, Development Ethics, Public Policy; International Institute of Social Studies (The Hague);
Erasmus University Rotterdam, Netherlands
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 425 – 433

Abstract

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