Representation: can we question the legitimacy of parliament?

In its opening words, phrased as a declaration and making known to all, the Freedom Charter embraces a claim to popular sovereignty and democratic rule, in the name of the people of South Africa. It immediately attacks the legitimacy of apartheid South Africa and simultaneously calls for a common society, shared by all:

“We the people of South Africa, declare for all our country and the world to know:

That South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of all the people; 

….And therefore, we, the people of South Africa, black and white together equals, countrymen and brothers adopt this Freedom Charter”

Considered in 2015, that statement raises the question whether such authority, vested in any body of state, even an elected one, is irrevocable.

It may be a statement that has come back to haunt post-apartheid governments whenever they act in a manner that is perceived to be anti-popular or anti-democratic.

Is legitimacy something that is given once and for all or a quality that has to be earned and re-earned, even possibly while enjoying an electoral mandate? If representatives are elected on one basis but perform in a manner that contradicts popular aspirations, can their legitimacy not be impugned, in terms of the very Freedom Charter that they claim to advance?

The opening clause of the Freedom Charter reads: “The People Shall Govern!” The achievement of universal suffrage in 1994 represented an important milestone in transforming law made by, for and in the interests of whites into law made in the interests of all. Certainly, the basis at least for achieving law representing the interests of “the people” was put in place.

For many there had been a hope for something more, a continuing public role in politics, as was envisaged in the “popular power” period of the 1980s. Certainly, there were experiences of democracy going beyond the vote that many had in their minds.

That popular element was not present in the post 1994 dispensation and many believed that it created a situation where one would have a relatively passive citizenry, possibly voting, but inactive for the rest of the five years between elections.

In the history of oppression and resistance, the franchise loomed large from the first entry of Africans into politics in the 19th century Cape when a limited number of Africans were able to qualify to vote under the Cape’s non-racial franchise.

Gradually that limited entry was whittled away as oppression under the Union and then the Republic of South Africa became more and more extensive in its reach.

Disenfranchisement was an immediately identifiable factor in the array of laws that constituted national oppression of black South Africans. That is why Dorothy Nyembe, in speaking of the adoption of the Freedom Charter said: “All the demands of the Charter point straight to parliament.” She also sang a popular freedom song about the leaders of the ANC and the Natal and Transvaal Indian Congresses, Chief Albert Luthuli, Drs Monty Naicker and Yusuf Dadoo, who would “lead us” and “represent us in parliament”.

In histories of the development of democracy, writers have noted that the original meaning of democracy conformed to direct rule by the people, something condemned by Aristotle, but which still holds some sway amongst many democrats.

In making the United States constitution, there was a conscious decision to exclude the possibility of direct democracy and the insistence on representative democracy – that is, voting periodically for legislators to represent an electorate.

The late Nigerian scholar, Claude Ake declared the notion of representative democracy to be a “contradiction in terms”.

In contrast, when Dorothy Nyembe and others sang of being represented by their revered leaders, they saw these leadership figures embodying a close relationship with the communities they were from or who were their support base. They saw them embracing the aspirations of the oppressed.

They understood there to be a connection between themselves and those who went to parliament, a bond that would not be broken once these people entered the law-making chambers to represent them. They trusted them and had no reason to doubt that the trust would be respected.

Representative democracy need not be a “contradiction in terms” or contradictory to popular self-realisation. The word “representation” can bear more than one meaning and be more or less conducive to re-presentation of the views and interests of the people who have voted.

It can mean a form of representation where the representative need not consider the voter the moment s/he enters parliament, or it could mean that constituency may be very much present in parliament.

The notion of bearing no accountability to the constituency was classically expressed by Edmund Burke to the voters of Bristol in 1774, where he made it clear that he did not have to follow their wishes: “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”

In contrast, John Hoffman and Paul Graham have argued that representation involves empathy – the capacity to put oneself in the position of another, the need “to imagine what it is like to be another”. In this understanding, representation accords with that of connectedness and solidarity, acting with compassion and passion in relation to those who need one’s assistance or whom one has the capacity to assist, themes found repeatedly in texts of liberation theology.

Accountability is central to this relationship and to be adequately accountable, parliament itself needs to be representative of the various components of the population.

Without accountability, representation can descend into impracticality or elitism. The notion of empathy entails such a link between representatives and constituents. Furthermore, in order to achieve the necessary connection, parliament itself needs also to be representative of the population at large, notably requiring, as has been achieved in South Africa, the presence of women directly articulating their own experiences instead of relying on men to do so on their behalf.

For those who argue for direct democracy, Hoffman and Graham caution that participation need not mean that it can only happen through direct involvement in political processes. “Direct involvement needs to be linked to representation, and it is worth noting that in the ancient Greek polis – often held up as an example of direct democracy – the assembly elected an executive council.”

Representation and abuse of trust

It has been repeatedly noted that trust in the current South African leaders who represent voters in parliament has been abused; they have failed to act according to their oath of office and to hold people, including the president, accountable, as well as acting irregularly in a range of other ways.

In so doing the sense of connectedness that may once have existed between the electorate and their representatives has been ruptured or put under severe strain. For the representatives to condone the diversion of funds meant for the poor towards luxurious improvements in President Zuma’s homestead comprises their alienation from that which previously bound them to their constituency.

It signifies that even if their constituency is not conversant with the intricacies of reports and evaluations of the spending on Nkandla, that at an objective level the act of MPs in endorsing such expenditure, which has a negative effect on the poor, runs against the ethos on which their election as public representatives should may have been premised.

This raises a delicate and difficult question, and that is whether being an elected representative “trumps” subsequent conduct. Does democratic election at one point in time mean that it confers legitimacy in perpetuity? One would not then be able to enquire into conduct that runs against that democratic expectation in the course of acting as a popular representative. Because the person was once democratically elected, are we barred from concluding that their conduct no longer bears the authority and legitimacy once conferred?

My belief is that legitimacy and authority, even if conferred through the ballot box, is not finally and unconditionally granted.   Should representatives conduct themselves in a manner that undermines the basis on which they have been elected or attacks the interests of those who are their constituency, that authority can be challenged or we may say that their actions are without a mandate or undermine the mandate they were given to “represent”.

It is important in this context that citizens who wish to recover democracy clarify precisely what it is that is needed and find ways of asserting a role in redirecting that which has currently taken a direction very different from the one many had hoped to see.

Raymond Suttner is a professor attached to Rhodes University and UNISA. He is a former ANC underground operative and served over 11 years as a political prisoner and under house arrest. He has recently published Recovering Democracy in South Africa (Jacana Media, 2015). On twitter @raymondsuttner  

[This article first appeared on Creamer Media’s website: polity.org.za]