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100 Chapter 7
democracy with the institutions of government intended to give
effect to it. Such an institutional understanding is flawed. 16 A
collection of democratic institutions is not democracy itself — it is
simply a structure inside which democracy might take place.
Democracy itself is a value-system, as Theunis points out, 17 a
discursive practice, 18 a way of doing and being, a mode of political
action, a culture. Certainly the Constitutional Court is correct in
assuming that the Final Constitution requires in the first place that
certain democratic institutions be created and maintained. But that
is only part of the picture. Such a democratic system without a
democratic culture and practice amongst those that partake in it is an
empty shell. A statement of the democracy-related constitutional
duties of the State that requires only that a series of democratic
institutions be created, without also engaging the problem of creating
and fostering the democratic culture with which to give those
institutions life, is incomplete.
The second problem with the Constitutional Court’s conception of
the State’s democracy-related constitutional duties is that it is a
decidedly negative description, at odds with the decidedly
affirmative nature of our Constitution. The point no longer needs to
be made that our Constitution is an affirmative document, requiring
not only that the vision of society that it proclaims be respected, but
also ‘protect[ed], promot[ed] and fulfil[led]’. 19 This is true, I would
say, also of the constitutional principle of democracy. In the Preamble
we read that a ‘society’ based on democratic values must be
‘established’ and a democratic South Africa be ‘built’. In FC section
1(d) the elements of democracy must be ‘ensured’. In FC section 7(2),
we read that the right to vote and other democracy-related rights
must be protected, promoted and fulfilled. We cannot, therefore,
accept as sufficient the Court’s assertion that an election arranged in
such a manner that it is possible for those who want to vote and who
take reasonable steps to vote passes constitutional muster; 20 or that
an arrangement of the institutions of representative democracy that
‘frustrates the will of the electorate’ can be left to stand because it
allows multi-party democracy. 21
The duty the Final Constitution imposes on the State is much more
onerous than this. It must make it probable rather than possible that
people will vote in elections; indeed it must encourage them to do so.
16
Roux (n 1 above). See also Roux (n 14 above) 10-23.
17 Roux (n 14 above) 10-23.
18 N Fraser ‘Talking about needs: Interpretive contests as political conflicts in
welfare-state societies’ (1989) 99 Ethics 291 297.
19 FC sec 7(2). See K Klare ‘Legal culture and transformative constitutionalism’
(1998) 14 South African Journal on Human Rights 146 154.
20
NNP (n 9 above) para 21.
21 UDM (n 3 above) para 26.