Inventing Democracy

Bill Keller

The New York Times

This is a great vantage point for watching the Arab world struggle to tailor itself a set of new democracies. It is nearly a generation since South Africa assembled its warring peoples and wrote what is certainly the most progressive constitution in Africa, perhaps on the planet. It prescribes all the safeguards of a democratic, humane and inclusive society. Its experience should be a shining model for the aspiring democracies at the other end of the continent as they fabricate basic laws and institutions.

I wish I could say the lessons from here are easy. But it is becoming clearer by the day that a glorious constitution carries you only so far if its values have not taken root in the culture.

So South Africa has an exquisite balance of powers on paper — but is, in effect, a one-party state, riddled with corruption. It has a serious independent judiciary — but is now contemplating loopholes to let tribal courts practice South Africa’s version of Shariah. This country was years ahead of the United States in recognizing the rights of homosexuals, including same-sex marriage — yet there is no openly gay leader in the ruling African National Congress, and lesbians have been targets of punitive rape and murder. It has a vibrant, diverse press — and a president who keeps trying to muzzle it.

As a witness to its birth, I would not say the thrill of South Africa’s democracy is altogether gone. South Africans are resilient, blessed with tourist-alluring beauty and abundant natural wealth; there is a growing black middle class and a robust civil society. And 18 years is still young. But I imagine that some days the news — if it penetrates the fog that I’m told enshrouds the 94-year-old Nelson Mandela — must break his heart.

In the course of a reporting trip for a forthcoming article, I’ve been asking some of the authors and guardians of South African democracy what advice they would offer to an Egypt, a Libya, a Tunisia and other places that are struggling to emerge from various forms of oppressive rule. Here’s how I’d sum up the best suggestions.

Take your time, talk to everyone and don’t be too proud to borrow.

For South Africa, there were five exhausting years — from the first talks, through statements of principle and interim versions — before its democratic Constitution went into force. The negotiating included 19 parties, factions and tribes, a huge public comment effort and copious study of the experiences of countries around the globe.

“We were shameless,” said Nicholas Haysom, a legal adviser to President Mandela in the ’90s who now works for the United Nations. “We looked at everyone. We took jurisprudence from Canada. We took power-sharing from Germany. We took constitutional principles from Namibia. The true exercise of sovereignty is in how one adapts these institutions to your own country, not in confining one’s imagination to one’s own limited constitutional traditions and experiences.”

Not everyone has that kind of patience. Egypt’s constitution-writing assembly, stampeded by President Morsi’s Islamist majority, has spawned a mess of boycotts, street clashes and confusion where consensus and legitimacy are desperately needed. (Iraq, stampeded by President George W. Bush’s desire to demonstrate the flowering of freedom, had a similar farce when it rushed its version of democracy.)

Peace before justice.

South Africa set out to heal the deep wounds of a ferociously cruel regime by creating a Truth and Reconciliation Commission. Those who tortured and killed for any cause could, by fully disclosing their offenses, win an amnesty. The result was not invariably full truth or full reconciliation, but by and large it worked. Alex Boraine, who ran the commission under the flag of its revered chairman, Archbishop Desmond Tutu, has spent the ensuing years traveling to other countries that want to copy the South African model.

Often, his advice is: not so fast. In some cultures the urge for vengeance is too strong to be curtailed by confession. Efforts to emulate South Africa, he said, have been pretty successful in Peru and Mauritius, but failed in Guatemala and Liberia. He expects that much of the Middle East is too raw for a truth commission. But he advises new democracies that there are other ways to slow the cycle of revenge, build confidence and secure a stable foundation for a new order. For example, should Syria’s opposition succeed, Boraine said, there will be a clamor to take President Bashar al-Assad before an international criminal court. “Another view would be: give him safe passage to Moscow. It’s not fair. it’s not just. But you’ve got to start somewhere, to stop the killing.”

Activist judges are not so bad.

South Africa’s Constitution is in several respects more liberal than South African public opinion. Because the drafters included admirers of Western liberal democracies, and because they emerged from a regime that treated its citizens as essentially chattel, the Constitution is expansive in bestowing rights. It prohibits discrimination based not only on race and gender, but also on “sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” The Constitutional Court has been similarly expansive in its interpretation of this language. The court outlawed capital punishment in 1995 and ruled in 2005 that gays and lesbians are entitled to marry. Neither of those outcomes would likely survive a popular referendum, even today. (South Africa, white and black, is socially conservative.) If proposed laws expanding government secrecy and empowering tribal justice pass the legislature, the high court will be the last line of defense. In America we disparage “activist judges,” but the willingness of South African courts to be assertive on matters of rights seems to have won the judiciary tremendous respect and moved this fledgling society toward greater tolerance. President Morsi, take note.

... Up to a point.

The relatively high esteem accorded the courts and the increasingly widespread disdain for the other branches of government have made South Africa’s courts the destination for disputes that have no business there: should Johannesburg install electronic tollgates on a stretch of highway? How many days should the Parliament be allowed to wait before voting on a no-confidence motion?

“People use these lawsuits as a substitute for political engagement,” said Steven Friedman, director of the Center for the Study of Democracy here. Politicians will never become good at their jobs if courts take their place.

Make citizens.

The curse of many transitional states is that they have no cohesive sense of nationhood, no common sense of purpose or responsibility. Instead of Iraqis or Syrians or Afghans or Egyptians, you have Sunnis and Shiites and Copts, Alawites and Kurds, Pashtuns and Tajiks. A generation past liberation, South Africa has had inspiring moments of unity, but it still has not fully coalesced. A new survey finds that fewer than 1 in 10 adults — and even fewer young people — identify themselves as “South Africans first,” over language, race or ethnic group. The country’s many peoples are equal under the law, but in some ways as “apart” as under apartheid.

Mamphela Ramphele, a wise and nonpartisan anti-apartheid activist and academic, attributes this in part to the sense of impotence that infected South Africans — and not just blacks — under the bleak tyranny of apartheid. And it is partly due, she says, to the cynicism generated by pervasive corruption under the African National Congress government. She has launched a new movement aimed at awakening a sense of citizenship, including through some institutional reforms, such as having most members of Parliament accountable to specific districts rather than answerable only to the ruling party. Freedom, she would advise the founders of new democracies, has to be won over and over.

“South Africans liberated themselves,” she told me, “and now they must do it again.”

Bill Keller, an Op-Ed columnist, was The Times’s Johannesburg bureau chief, 1992-95.

Source: http://www.nytimes.com/2012/12/10/opinion/keller-inventing-democracy.html?hp

Majority Rule / Minority Rights in Eritrea

Majority Rule / Minority Rights

Abraham G. Ghiorgis

Pasted below is an article from the “Democracy Web” that succinctly elucidates the principles of majority rule and the respect of minority rights in a liberal democratic society. Considering what is transpiring at the ENCDC meeting, this article may be relevant to the issues of the freedom of expression and the respect of minority rights.

Some in the opposition understand that burning issues in a democracy are decided only through majority vote. This however disregards among other things the respect of the rights of minorities. If that were to be  the case then we will have all kinds of the “tyranny of the majority.”

For example, it is plausible that a demagogue can easily abolish all religions in Eritrea except the Tewahdo and Islam through the simple exercise of a “democratic majority vote.” And he can defend it easily by raising the banner of a “majority vote.” The demagogue does not understand that the right to freedom of religion is not subject to a majority vote. Majority rule is dangerous and dictatorial if it is not coupled by the respect of minority rights and the respect of the rule of law. Remember Hitler came to power through the mechanism of a “democratic majority vote.”

“Majority rule can not be the only expression of ‘supreme power’ in a democracy... If so, … the majority would too easily tyrannize the minority. Thus, while it is clear that democracy must guarantee the expression of the popular will through majority rule, it is equally clear that it must guarantee that the majority will not abuse its power to violate the basic and inalienable rights of the minority.”

“Democracy therefore requires minority rights equally as it does majority rule. Indeed, as democracy is conceived today, the minority's rights must be protected no matter how singular or alienated that minority is from the majority society; otherwise, the majority's rights lose their meaning.”

In real liberal democracies, there are certain rights that are off limits from democratic majority vote. These are generally referred to as negative rights like: the freedom of expression, the freedom of association, the freedom of religion, the respect of property rights, the due process of law and etc.

The majority cannot use its numbers to abolish the right of freedom of expression, that include expressions that may be detestable and abhorrent to the majority. The majority in a society cannot decide whether one is free to express his opinion as he sees fit through a “democratic” majority vote. Otherwise civilization will not advance. The principle of the freedom of expression in its fullest sense does not give a hoot to whether the opinion one holds conforms or not to that hold by the majority in a society. That is the whole essence of the principle of the freedom of expression, and that is also the reason an opinion of a citizen how “foolish” it maybe is not subject to a vote. Rather it becomes a subject to a debate. Only autocrats hate debates. The ENCDC do you hear me.

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Majority Rule / Minority Rights

by Democracy Web

"If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach? Men do not change their characters by uniting with one another; nor does their patience in the presence of obstacles increase with their strength. For my own part, I cannot believe it; the power to do everything, which I should refuse to one of my equals, I will never grant to any number of them."

Alexis de Tocqueville, "Tyranny of the Majority," Chapter XV, Book 1, Democracy in America

Majority Rule

Democracy is defined in Webster's Encyclopedic Dictionary as:

Government by the people; a form of government in which the supreme power is vested in the people and exercised by them either directly or through their elected agents;... a state of society characterized by nominal equality of rights and privileges.

What is left out of the dictionary definition of democracy is what constitutes "the people." In practice, democracy is governed by its most popularly understood principle: majority rule. Namely, the side with the most votes wins, whether it is an election, a legislative bill, a contract proposal to a union, or a shareholder motion in a corporation. The majority (or in some cases plurality) vote decides. Thus, when it is said that "the people have spoken" or the "people's will should be respected," the people are generally expressed through its majority.

Democracy Requires Minority Rights

Yet majority rule can not be the only expression of "supreme power" in a democracy. If so, as Tocqueville notes above, the majority would too easily tyrannize the minority. Thus, while it is clear that democracy must guarantee the expression of the popular will through majority rule, it is equally clear that it must guarantee that the majority will not abuse its power to violate the basic and inalienable rights of the minority. For one, a defining characteristic of democracy must be the people's right to change the majority through elections. This right is the people's "supreme authority." The minority, therefore, must have the right to seek to become the majority and possess all the rights necessary to compete fairly in elections—speech, assembly, association, petition—since otherwise the majority would make itself permanent and become a dictatorship. For the majority, ensuring the minority's rights becomes a matter of self-interest, since it must utilize the same rights when it is in minority to seek to become a majority again. This holds equally true in a multiparty parliamentary democracy, where no party has a majority, since a government must still be formed in coalition by a majority of parliament members.

The Constant Threat

The American founders—Anti-Federalists and Federalists alike—considered rule by majority a troubling conundrum. In theory, majority rule was necessary for expressing the popular will and the basis for establishing the republic. The alternative—consensus or rule by everyone's agreement—cannot be imposed upon a free people. And minority rule is antithetical to democracy. But the founders worried that the majority could abuse its powers to oppress a minority just as easily as a king. Thomas Jefferson and James Madison both warn in their letters about the dangers of the tyranny of the legislature and of the executive. Madison, alluding to slavery, went further, writing, "It is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part."

A half century after the United States was established, Alexis de Tocqueville saw the majority's tyranny over political and social minorities as "a constant threat" to American democracy in his pre–Civil War travels. While visiting the state of Pennsylvania, when he asked why no free blacks had come to vote in a local election he was observing, he was told that "while free blacks had the legal right to vote, they feared the consequences of exercising it." Thus, he wrote, "the majority not only makes the laws, but can break them as well."

Minority Rights I: Individual Rights vs. Majority Tyranny

Democracy therefore requires minority rights equally as it does majority rule. Indeed, as democracy is conceived today, the minority's rights must be protected no matter how singular or alienated that minority is from the majority society; otherwise, the majority's rights lose their meaning. In the United States, basic individual liberties are protected through the Bill of Rights, which were drafted by James Madison and adopted in the form of the first 10 amendments to the Constitution. These enumerate the rights that may not be violated by the government, safeguarding—in theory, at least—the rights of any minority against majority tyranny. Today, these rights are considered the essential element of any liberal democracy.

The British political philosopher John Stuart Mill took this principle further. In his essay On Liberty he wrote, "The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others." Mill's "no harm principle" aims to prevent government from becoming a vehicle for the "tyranny of the majority," which he viewed as not just a political but also a social tyranny that stifled minority voices and imposed a regimentation of thought and values. Mill's views became the basis for much of liberal political philosophy since, whether it is free market or economic liberalism or social liberalism.

How do majority rule and the protection of minority rights function in practice? Clearly, the two can easily collide when the assertion of Madisonian rights and Millian liberalism confront an unmovable democratic majority. In politics, the regularity of elections and the principles of separation of powers and checks and balances (see "Constitutional Limits") are the means for ensuring debate over the people's interests and views.

Minority Rights II: Protecting Minority Groups in Society

Madisonian and Millian principles safeguard individual and political minorities. But the danger of majority tyranny lies not just in the infringements of individual rights or the marginalization of a political minority, but in the oppression of minority groups in society based simply on criteria such as skin color, ethnicity or nationality, religion, or sexual orientation. Judicial checks on majority tyranny were supposed to expand political and civil rights over time; however, the American courts were themselves often a part of majority tyranny, as numerous Supreme Court cases attest. The 19th-century Dred Scott and Plessy v. Ferguson decisions ruled that African Americans were socially inferior and thus not guaranteed equal protection of the laws (see descriptions of these two cases on the African American History web page).

The African American Experience

In the United States, it is the African American experience that most warns of the danger of such majority tyranny. The Constitution, officially implemented in 1789, flatly contradicted the principles of the Declaration of Independence. Its infamous "three-fifths compromise" (which determined that a slave constituted only three-fifths of a person) sanctioned slavery and the terrible mistreatment of millions of Africans brought to America in chains. Even after the Civil War's end, amendments to the Constitution abolishing slavery and guaranteeing equal rights did not prevent the adoption of Jim Crow laws in the Southern states, which collectively maintained a system of institutionalized segregation, or pervasive discrimination against African Americans in the North. In the South, whites disenfranchised black voters through so-called literacy tests, poll taxes, and property qualifications that were never applied to poor and illiterate whites.

To overcome this form of majority tyranny, maintained for nearly 100 years, the African American minority, just over 12 percent of the population in the late 1800s, had to confront the reality that nearly all political avenues were closed to it. In the South the right to vote had effectively been taken away, and in the North it was ineffectual. In the early 20th century, some African American leaders therefore adopted a strategy of nonviolence and civil disobedience that took the fullest advantage of the freedoms contained in the Bill of Rights and challenged American institutions to live up to America's democratic principles. In their strategy, the rational answer to systematic denial of freedom was the exercise of freedom. The answer to systematic denial of inequality was demanding legal equality and justice in the courts. The ultimate success of this strategy—which began in 1905 with the Niagara Movement of W. E. B. Du Bois and demanded equal rights and eventually led to the development of the National Association for the Advancement of Colored People (NAACP)—fulfilled the stated ideals of American democracy and as a result made the African American civil rights movement an enduring international symbol for world freedom. Its nonviolent method has become a much-used model for how an oppressed minority can seek freedom through the peaceful use of democratic rights.

The Persistence of Discrimination

America's experience is unique in scope, but all democracies have witnessed "the tyranny of the majority" applied against different social groups. Nearly all democracies, for example, restricted voting to specific economic groups, most frequently to male property owners, and only slowly expanded the franchise to men generally. Women were systematically denied equal political and social rights. The first state to grant equal suffrage was Wyoming, then still a territory, in 1869; the first country to do so was New Zealand, but only in 1893. British women over the age of 30 were given the vote in 1918, and in 1928 the age limit was lowered to 21. Women in the United States gained suffrage in 1920, while France did not adopt universal suffrage until after liberation from the Nazi occupation in 1944. Despite having the right to vote in most countries today, women still suffer formal discrimination in many places in the world.

In Europe, minority Muslim communities from former colonies in northern Africa, the Middle East, and Southwest Asia have struggled against pervasive discrimination and the denial of equal opportunities in education, jobs, and housing. In India, the "untouchables," or harijan, have only recently gained rights to enter the mainstream of society. Majority indigenous groups in Bolivia and several other Latin American countries have long been treated as "the minority" for most of their countries' constitutional histories. Indeed, the issues of minorities seeking greater freedom, equality, autonomy, and protection against discrimination and unequal treatment are current throughout the world. Usually they are being addressed through nonviolent protests, legislation, the courts, protection of native lands, education, and other efforts granting regional autonomy or specific rights and privileges.

The Ultimate Denial of Minority Rights

The most extreme treatment of minorities has been carried out by 20th- and 21st-century dictatorships. The worst examples are those of totalitarian regimes that carried out genocide to eradicate unwanted groups in society. The Holocaust perpetrated by Nazi Germany murdered six million Jews, one-third of the total world Jewish population, as well as a significant portion of the Roma ("Gypsy") community. Homosexuals were also a targeted minority for extermination. The Soviet Union, under Stalin, carried out mass executions and deportations of dozens of Caucasian and Central Asian ethnic groups; some now face extinction.

More recently, the Russian Federation has waged a brutal war against its own republic of Chechnya, killing tens of thousands of civilians and displacing more than half the population. Other examples of mass killings of a minority by a dictatorship include the Nigerian campaign against Biafrans (see "Freedom of Religion"), the Hutu genocide of Tutsi in Rwanda, Saddam Hussein's mass killing of Kurds and Shiites in Iraq, and the Sudanese government's sponsorship of mass killing, raping, and deportation in Darfur (see Sudan Country Study. The project for an "ethnically pure" Greater Serbia undertaken by Slobodan Milosevic resulted in the murder of 200,000 Bosnian Muslims and 10,000 Albanian Muslims in Kosovo by a killing machine that was stopped only by military campaigns carried out by NATO.

International Protection of Minority Rights

This history has made the protection of minorities from abuse by majorities one of the highest obligations of international law. The Convention on the Prevention and Punishment of the Crime of Genocide, adopted after World War II in 1948, is the most widely recognized international treaty governing the practice of nation-states. The UN's International Covenant on Civil and Political Rights, adopted in 1966, defines not just individual rights but also minimum protections for minorities. Article 27 asserts:

[P]ersons belonging to [ethnic, religious, or linguistic] minorities shall not be denied the right in community with the other members of their group to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992, and the Indigenous and Tribal Peoples Convention of 1989 further define protections for ethnic, religious, and cultural minorities to preserve their culture, languages, and beliefs and to protect themselves from discrimination. While these treaties establish clear international moral standards, their actual observance has often been found wanting, as the dramatic recent cases of Iraq, Rwanda, Sudan, former Yugoslavia, and the Russian Federation show. These treaties have no binding legal effect, although the states that ratify them are legally answerable. Occasionally, however, that does not offer enough deterrent.

Nor do these conventions address a difficult political issue posed by democracy: assimilation versus separation. While assimilation of a minority into the broader society offers a minority greater opportunities and political influence, it does so often at the expense of minority cultures, beliefs, and practices. On the other hand, preserving cultures, beliefs, and practices by insulating the minority reduces its influence within the majority political culture. It is not an easy balance.

Conclusion

On a practical level, the application of majority rule and minority rights relies on a set of rules agreed to by everyone in a political community. How are majorities determined? What are the limits of debate and speech? How can members in a community propose a motion or law? Should a minority be allowed to prevent the majority's will by abusing its rights? There is no one answer to these questions, and many democracies have answered them differently. But for those countries that follow an Anglo-Saxon tradition, one of the basic guides for democracy is Robert's Rules of Order. Its beginning offers a concise statement of the democratic ideal:

American Parliamentary Law is built upon the principle that rights must be respected: the rights of the majority, of the minority, of individuals, of absentees, and rights of all of these together.

Source: http://www.democracyweb.org/majority/principles.php