The DA’s principle of separation of party and state: Potentially problematic? - Biznews

In a previous article I claimed that there might be a tension between the Democratic Alliance (DA)’s principle of ‘separation of party and state’ on the one hand and representative democracy on the other.

The Democratic Alliance (DA) has a fundamental principle of separating party and state in their manifesto, where the party believes that the state and its representatives are accountable to all and must operate in the interests of all in society. This means that public representatives should expand their interests and care to all members of society, not just the supporters of the party. However, this principle has proven problematic in the implementation of laudable, liberal policies where the DA already governs, as well as if the party decides to go into a coalition with the African National Congress (ANC). To read more on this principle and the potential implications of its implementation, find the article below.

Martin Van Staden

In a previous article I claimed that there might be a tension between the Democratic Alliance (DA)’s principle of ‘separation of party and state’ on the one hand and representative democracy on the other.

This could present problems for the party if it decides to go into a coalition with the African National Congress (ANC). But it has on occasion also undermined the implementation of laudable, liberal policies where the DA already governs. Here I elaborate on why the interpretation of this principle is potentially problematic.

Representative democracy

The basic theory of representative democracy is that voters vote for parties or individuals to represent them in state legislatures. In South Africa, the public votes for political parties. In so doing, voters bestow a mandate to govern upon their chosen party.

What, however, is the content of this mandate?

It is impossible for analysts to look into the mind of every individual voter to determine why, precisely, they decided to vote for a particular party, and what precisely they want the party to do. This is why a proxy must be utilised, and this proxy, all around the world, comes in the form of the stated values and principles of the political party (or individual candidate), and in particular its electoral manifesto.

The mandate voters give to a political party, in other words, is to conduct itself in accordance with its values and principles, and to implement its promised manifesto. This is true whether it gets a governing mandate, is an opposition party advocating certain positions, or is a minority partner in a coalition.

There is much speculation about whether the average South African voter knows or cares about values or manifestos, with some saying many South Africans simply vote on the strength of brand loyalty and personality instead. But this speculation, while it might be supported by useful polling, can never be finallyconfirmed. When someone votes for a particular party, the only steady ground upon which to analyse the democratic mandate is to base it on the party’s stated values and manifesto.

Separation of party and state

The DA’s values statement on the separation of party and state, in full, is as follows:

‘Political parties by nature represent a section of the population and are voted into government by a proportion of voters. As a result, political parties are primarily accountable to their members and supporters.
In contrast, the state and its representatives are accountable to all, and must operate in the interests of all in society.
Separation of party and state demands public representatives expand their interests and care to all members of society. Simultaneously, to ensure that the resources and authority of the state are employed to serve the nation and not the party.
The DA will strive never to let its political objectives obscure or interfere with its public duty to all South Africans.’
This is a benign principle at a first glance. There is, however, a problem, especially as it relates to the second and fourth bullets.

A political party, by choosing a given ideology – the DA’s liberalism, or the Freedom Front Plus’s conservatism, or the Economic Freedom Fighters (EFF)’s Marxism-Leninism – and by populating its electoral manifesto with specific policy positions and promises, seemingly decides that that ideology and those policies are ‘in the interests of all in society’.

When the DA commits itself to the ‘social market economy’, it is not saying that it believes the social market economy will benefit DA members and supporters – it is saying that such an approach to the economy would benefit all of society, including ANC and EFF supporters.

When the DA-in-government, then, adopts policies that would bring about a social market economy, it is not the case that the DA’s ‘political objectives obscure or interfere with its public duty to all South Africans.’

What is the problem?

I have long argued that there is a disconnect between the DA party and DA governments. I regard this as a problem, but many in the DA would regard it as a commendable realisation of its principle of separation of party and state. I have effectively been told as much privately by DA party functionaries and DA deployees in local government and Parliament.

The DA, at least since late 2019, has recommitted itself admirably to the values and principles of (classical) liberalism and federalism. Readers of my work would have noticed a change in tone, from my very critical posture towards the pre-2019 DA of Mmusi Maimane, to my somewhat more upbeat posture towards the 2020-present DA of the ‘classic liberals’.

This recommitment to liberalism and federalism by the party has not necessarily translated into liberal and federalist performance by DA-controlled municipalities or the Western Cape province. Rudimentary research will reveal many examples, but here are three worth mentioning.

Alcohol policy

The first and oldest, is the alcohol policy of the Western Cape Provincial Government. As a teetotaller, I need no convincing of the harms of alcohol. My own views on the destructiveness of alcohol, however, have nothing to do with what the liberal approach to alcohol use is.

The Western Cape supports ‘a national ban on alcohol advertising that is visible to anyone under the age of 18, and restricts sports advertising and promotion that links alcohol to success or popularity’. It seeks to ‘set maximum limits for trading hours/days in line with an alcohol-related harms reduction approach’. It supports limiting the number of ‘outlets in each area’. It seeks an ‘increase of alcohol pricing through excise tax or minimum unit pricing and [is considering] a provincial tax’. The provincial government additionally wants to ‘expand and strengthen random breath testing’ for drivers.

One can have an hours-long debate about the harms of alcohol abuse in Western Cape communities. The extent of my interest, however, is whether this chosen policy is in line with the DA’s stated values – its public commitments to voters before elections. To quote from the party’s values and principles once more:

‘Freedom is the ability of individuals to speak, choose, act, think, and associate independently and without coercion.’
‘Importantly, freedom is a right and not a privilege granted by government.’
‘The DA will strive to champion freedom and oppose control.’
‘Opportunity means that every individual is presented with choices, and the reasonable ability to act on them, in order to create a life of their choosing.’

‘A social market economy refers to an economy in which participants (firms and consumers) rather than the government decide on what to purchase, where to invest, and how much to produce.’
Clearly, in my view, there is incongruence between the relatively restrictive approach to alcohol by the Western Cape government, and the almost unambiguously pro-consumer freedom approach of the party that governs it.

Lockdown enforcement

In December 2021, the Mayor of Johannesburg, elected by the DA caucus there and by all accounts a DA member in good standing, Dr Mpho Phalatse, ‘accompanied a large law enforcement contingent on raids on Johannesburg inner city nightclubs and bars, shutting several down for violating Covid-19 emergency regulations.’

Phalatse tweeted that she was ‘disturbed by the level of lawlessness’, conjuring up images of disorder. What ‘lawlessness’ was she referring to? ‘None of the night clubs visited were screening patrons for Covid, completing attendance registers, managing numbers, ensuring ventilation as well as other Covid protocols. No more!’ (‘Visited’ is a disquieting euphemism for a police raid.)

Quite the ‘lawlessness’.

To my recollection, Phalatse was at no point reprimanded by the DA caucus in Johannesburg or any senior colleagues in the party for her authoritarian eagerness to enforce the central ANC government’s arbitrary, economy-destroying ‘protocols’. Her raid contravened each of the DA values stated under the previous heading.

To be clear, I am not saying the Johannesburg Metropolitan Police Department should have done anything to violate the arbitrary lockdown rules, which carried the force of law. But Phalatse and her administration could have left the enforcement of Dr Nkosazana Dlamini-Zuma’s rules to the national Police Service. This DA government went out of its way to enforce national policy that is entirely incongruent with the party’s values.

BEE in procurement

The DA adopted a commendable commitment to non-racialism in the same policy statement quoted above. This commitment reads, in part:

‘Nonracialism is the rejection of race as a way to categorise and treat people, particularly in legislation.
The assumption that one’s “race” represents people who think, feel, or have the same experience of shared events, based on their physical appearance, is false.
Nonracialism is therefore a commitment, not just to reject racialism and racism, but to fight for the deconstruction of race, and the reconstruction of a non-racial future.
The DA unequivocally stands for non-racialism not multiracialism.’
Yet, the governments of the Western Cape, the City of Cape Town, and the City of Tshwane (while under DA-led multiparty coalition rule) all have procurement policies that in part award contractors tender points based on the apparent race of the owners of the contracting companies.

Each of these governments might claim that the Preferential Procurement Policy Framework Act (PPPFA) obliges them to implement a partly racial procurement system. However, when one has regard to section 217 of the Constitution, it is clear that each individual organ of state has a discretion about whether or not to adopt preferential procurement policies, while being under an obligation to ensure value-for-money.

There is some debate over whether section 217(3) compels all organs of state to adopt racial preferencing under the PPPFA, or whether that obligation applies only to those organs of state that have opted into preferential procurement as allowed for by section 217(2). Despite this opportunity to make the case for value-for-money procurement, there is currently no active litigation, to my knowledge, by any of these governments testing the constitutionality of the PPPFA.

The Constitutional Court struck down the 2017 PPPFA regulations in 2022 which went as far as to pre-emptively disqualify tenderers based on race before the procurement evaluation has even begun. The Treasury has since replaced these regulations with more benign ones that came into effect on 16 January 2023. Nonetheless, a new Public Procurement Bill is slated to replace the PPPFA. All of these are relevant to individual organs of state procurement, but their implications are to be considered in a separate article.

Corruption and separation of party and state

There are, of course, perfectly justifiable areas where party and state must be separated.

A political party in government should not be allowed to use the South African Broadcasting Corporation to simply spread party propaganda. It should not use its deployees in government to appoint commissioners to the Electoral Commission to rig elections in the party’s favour. A party that controls the National Treasury should not be allowed to funnel taxpayer money into the party’s bank account.

These are all instances where the machinery of state is used to undermine the very functioning of democratic institutions to entrench the incumbent party and enrich or empower individuals and factions within the party.

But when it comes to a political party’s policy positions and ideology, it seems to be an imperative of representative democracy that the party, when it is given a mandate by voters at the ballot box, delivers on that mandate by implementing its manifesto and adhering to its stated values and principles. Not to do so is a betrayal of the party’s mandate. It signals to voters that electoral promises are merely rhetorical and will not be translated into reality.

Perhaps it is better not to implement

Representative democracy (in my view) is not the ultimate political end of liberalism. The liberty of the individual is. It gives me great joy, then, when the ANC promises voters that it will implement a national health insurance scheme, only to drag its feet for decades. One does not always want a party to do what it promises to do.

But not all political parties or political objectives are equally valid: those that are based on the recognition of the dignity, freedom, and agency of the individual will always be more legitimate than those that fundamentally reject it.

When it comes to parties, like the DA, that ostensibly champion reformist goals, that promise to steer South Africa away from the harms of centralisation and paternalism, one hopes that they would, in fact, see their values through to implementation. A notion of ‘separation of party and state’ should not stand in the way of this.

*Martin van Staden is a South African classical liberal author and jurist whose work has appeared in national and international media.

This article was first published on the Daily Friend.