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Theunis Roux 85
The next part of the Final Constitution that needs to be taken into
account are the provisions setting out the powers and functions of the
various legislative bodies. These provisions may be divided into three
basic types: provisions requiring legislative bodies to take account of
representative and participatory democracy in the way they design
their rules and orders; provisions requiring legislative bodies to allow
minority party participation in their proceedings; and provisions
requiring legislative bodies to facilitate public access to and
involvement in their proceedings. All these provisions qualify the
majority-rule principle underlying the provisions on national,
provincial and local government legislative authority as a whole: that
is, the principle that whichever party wins the most votes in an
election is entitled to form the government. The qualification that
the three sets of provisions place on the majority-rule principle is that
the commitment to multi-party democracy in FC section 1(d) is not
one that may be fulfilled at election-time alone, but one that must be
carried through to the day-to-day operation of the various
legislatures, such that the views of citizens who voted for minority
parties are fairly reflected in any discussions that take place. In
addition, the third type of provision requires that the legislatures
should allow citizens on occasion to bypass their elected representatives
in order to participate directly in the proceedings of the
legislature. This qualification may be expressed by restating the first
element of the democratic principle in the following way:
Government in South Africa must be so arranged that the people,
through the medium of political parties and regular elections, in which
all adult citizens are entitled to participate, exert sufficient control over
their elected representatives to ensure that (a) representatives are held
to account for their actions, (b) government listens and responds to the
needs of the people, in appropriate cases directly, [and] (c) collective
decisions are taken by majority vote after due consideration of the views
of minority parties, and (d) the reasons for all collective decisions are
publicly explained. (Words added are underlined; words deleted appear
in square brackets.)
Is it also necessary to amend the statement of the democratic
principle in light of other rights integral to democracy, such as the
right to freedom of expression, political rights and socio-economic
rights? To a large extent, these rights have already been taken into
account in the statement of the second element of the democratic
principle. At the risk of privileging certain rights over others and
making the statement of the second element long and unwieldy, one
might amend it thus:
The rights necessary to maintain such a form of government, including
the right to freedom of expression, the right to form political parties,
the right to vote, and the right to the minimum standard of welfare
necessary to participate in the democratic process, must be enshrined in