A Democratic South Africa? Constitutional Engineering in a Divided Society
by Donald L. Horowitz
University of California Press, 312 pages, $24.95
Just over 200 years ago, the United States was in a position arguably more critical than that of South Africa today. It had recently fought a war with Britain, and it was torn by sectional strife. Its economy was in a shambles, its currency discredited, and its system of government ineffectual. Despite all these crises, its constitutional deliberations produced an enduring and remarkable document. The genius of the Founding Fathers of the United States was to take human nature as it is, not as one would like it to be, and to provide protection against dictatorship by balancing the power of any one man or institution against that of another. It was a brilliant innovation, one from which South Africans now engaged in constitutional talks might learn, but of course it applied to a people, as the Federalist Papers noted, “descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs.” How are South Africans, united by none of these bonds, to deal with the same problems? The answer is of more than parochial significance, because the success of democracy in South Africa”the most highly developed and dynamic country on the continent”would surely have an impact far beyond its borders. Can South Africa become”and remain”a democracy? The unhappy truth is that the odds are against it. “Only a seasoned gambler,” writes Donald Horowitz in this creative and profound book, “could be sanguine.” This may seem a dismal conclusion about an enterprise begun with such courage and hope when Nelson Mandela was released from prison in February 1990. But the great merit of this book is to alert South Africans to the sheer difficulty of building democracy, and to suggest ways in which they can be helped. Indeed, it is hardly a paradox to note that the more South Africans understand how difficult it will be to maintain a democracy, the more likely it is that they will succeed in doing so. Horowitz is well-qualified for his task: he has carefully analyzed the debates on the American Constitution, his book Ethnic Groups in Conflict has been called by Seymour Martin Lipset “the best comparative study of ethnic tensions around the world,” and he has a remarkably dispassionate knowledge of South Africa. Horowitz understands that the democratic prospect in that country is made the more unlikely because it cannot be half-way in nature. White South Africans must, he insists, prepare themselves for a fully democratic society: “It needs to be said, as emphatically as possible, that every vote should count for one and none count for more than one.” It is Horowitz’s realism that accounts for his lack of optimism. The most obvious obstacles to the achievement of South African democracy are tactical. A deal will have to be struck within two years, since it could be fatal for the government to go into an election in 1994 with the country still in a state of uncertainty and turmoil. The change will have to be dramatic, because change has been left so late. There will be pressure for a deal at any cost, and in such an atmosphere there will be an inclination to demand constitutional guarantees for group rights, an approach that may be no more helpful than were the Entrenched Clauses in South Africa’s present constitution in protecting the voting rights of the Coloreds. There is also the problem of the psychological damage done by apartheid, and the suspicions arising from the constitutional duplicity of the government in the past. Suspicions also arise from the fact that most post-colonial African leaders have had only a shallow adherence to democracy, and the democratic aspirations of the African National Congress, with its close alliance and overlapping membership with the South African Communist Party, do not inspire confidence. Nor has apartheid given those under its control much experience of pluralism. It has instead fostered intolerance, which is one of the reasons so many people are being killed, many for no more reason than that they belong to the wrong party or a different tribe. The most serious reason for concern, however, is the difficulty of building democracy in deeply divided societies, and the lack of models of successful multiethnic democracies. Even the United States had the advantage of being a democracy before it became multiethnic, or, at least, before it recognized its ethnicity. The problems of a divided society are more difficult to solve because many South Africans deny that they exist. The very emphasis laid by the South African government on ethnic differences has ensured that many blacks reject the concept out of hand. Many of them are convinced that tensions will automatically subside once black aspirations are recognized. Yet current developments elsewhere indicate that this belief is misplaced. We read daily of the crises or impending dissolution of multiethnic states like the Soviet Union, India, Yugoslavia, Czechoslovakia, Ireland, Belgium, Canada, Lebanon, Cyprus, Israel, or Sri Lanka. African countries have been no more successful in suppressing ethnic differences, although some have tried ruthlessly to do so. Yet there are institutions that have worked in deeply divided societies in Africa and Asia, and they give rise to Horowitz’s most important contribution, which is to focus on the use of constitutional incentives and constraints. South Africans have tended to look for protection against oppressive government to constraints on that government”an independent judiciary, bills of right;, or entrenched clauses. These may indeed be helpful, but they ultimately may provide no protection against a government determined to overcome them. What South Africans have not looked at are constitutional incentives, incentives that give politicians some assurance that they can win power by doing the right thing”in this case, by reaching across racial and ethnic groups so that a government is genuinely representative of the population as a whole. Incentives can are as useful in politics as they are in selling cars. In Nigeria during the Second Republic, candidates for the presidency had to win not only the largest number of votes but at least 25 percent of the vote in no fewer than two-thirds of the nineteen regions, thus ensuring that the winner would be a genuine moderate. (Unfortunately, the constitution failed to include similar incentives throughout the system.) Horowitz believes that a South African President should have to win a majority of the total vote, and a proportion of the vote in most ethnic groups high enough to require a genuine effort to reach across ethnic and ideological barriers (but not too high to be impossible to meet). The political system, Horowitz goes on, must build in the same incentives for every office in each branch and each level of government. He believes that the best way to achieve this is through the alternative vote, the system used in Australia. In that system each vaster, after voting for his preferred candidate, ranks the other candidates in order of preference. Where nobody gets more than 50 percent of the vote, the alternative votes of those who voted for other candidates are divided among the two at the top of the poll until one gets a majority. This gives an incentive to each politician in each constituency, even before the election, to reach out to other ethnic groups to ensure his own victory. There is a premium, in other words, on moderation and accommodation rather than division. To enhance that effect, Horowitz would create multimember constituencies covering large geographic areas, to ensure a variety of ethnic groups within each constituency. This would make it difficult for politicians to put forward uncompromising messages, on either ideological or ethnic lines. Horowitz’s may be the most creative constitutional thinking to have emerged so far in the South African context: it is grounded in principle, informed by a profound understanding of the alternatives, and sensitive to the tensions beneath the surface of South African politics. But is it at all realistic? The most formidable obstacle to adoption of a program as imaginative and helpful as this may be its sheer unfamiliarity. The country’s experience”or lack of experience”may be against it. South Africa’s white leaders have been cut off from the rest of Africa for more than a generation, and have no knowledge of what has or has not worked elsewhere. The ANC, which has wide knowledge of Africa, has little incentive to draw the right conclusions from what it knows. This is not to say that there are no grounds for optimism. Apartheid has been dismantled with remarkable speed. The different parties are actually talking to one another, and in a way that would amaze those involved in the Middle East. They have formed often friendly relationships. South Africans, to adapt the words of Thomas Paine, do have it in their power to begin their world all over again. But constitutions, even more than marriages, fare for better or for worse. They have to be built to endure when warm feelings fade. And that, as Donald Horowitz well knows, is no easy job.
John H. Chettle , a former Director for North and South America of the South Africa Foundation, is now Partner and Director of the International Law Practice of the Washington, D.C. firm of Freedman, Levy, Kroll & Simonds.