The seminal concept and practice of democracy is referred to in several places in the constitution.
Although there may be some disagreement on the meaning and application of the concept it is referred to in three ways in the constitution: representative, participatory and direct democracy.
For the purpose of this piece, the practice of participatory democracy is of great importance.
Democracy does not merely mean that citizens can cast their votes once every five years in national, provincial and local government elections, it means very much more than that by allowing them to participate in the manner and way they are governed.
Participation by citizens in the decisions the government makes concerning their well-being is essential for an authentic democracy. This applies in some small way to the education of their children.
It is for this reason that parents have expressed profound concern about the Department of Basic Education’s proposed changes to the SA Schools Act by virtue of the Basic Education Laws Amendment Bill as reported in the media ("Proposed Bill will silence parents", Daily News, November 10).
Education is one of the most crucial political and cultural issues in our society and body politic. The parents of pupils cherish their involvement in the education of their children in the public schools.
Furthermore many of these parents make an important contribution to the well-being and operating of these schools by their fund-raising and other activities.
It is therefore understandable that the recent announcement made by Minister of Basic Education Angie Motshekga, that a bill is being proposed that will limit the powers of the school governing bodies (SGB) by drastically reducing important decision-making powers that they have.
These SGBs have an important component that consists of the parents of learners who are elected to serve on them.
This is an important manifestation of participatory democracy which is endorsed by the provisions of the constitution as explained above.
If the proposed amendments to the SA Schools Act were to become law it would allow the departments of education in the provinces to unilaterally decide on, inter alia, pupil admissions, the language of teaching and the appointment of staff, in all of which the extant SA Schools Act gives them a meaningful and democratic voice.
The proposed amendments would change the nature and operation of the SA Schools Act from incorporating participatory democracy as envisaged in the constitution to one of a highly authoritarian or even dictatorial nature, incompatible with at the very least the spirit of the constitution and probably with its letter, bearing in my that the idea and practice of democracy permeates the constitution and the transformation it envisages.
Furthermore, many of the schools they are apparently aimed at, the former Model C schools are actually functioning well.
Strong objections have been made to the proposed changes. So, for instance, as reported in the Cape Times sister newspaper the Daily News on November 10, Thirona Moodley, chief executive of the National Professional Teachers’ Organisation, stated that "the proposals in their present form are dictatorial and undemocratic".
Are we taking away active citizenry? These proposals have the effect of adding responsibility to provincial departments. Do they have the capacity to effectively execute these responsibilities?
Furthermore there have been serious allegations that certain posts in education were fraudulently "sold" by unscrupulous officials to certain persons.
This is a matter still being investigated. Allowing departmental officials to unilaterally decide on appointments opens up the system to fraud and corruption.
In similar vein Jaco Deacon, deputy chief executive of the Federation of Governing Bodies of SA Schools (Fedsas) stated that the SA Schools Act allowed for the creation of public schools, with full legal personality governed by school communities through democratically elected governing bodies that form a system so important that it was described in a Constitutional Court judgment as "a beacon of democracy".
It is conceded that there are indeed dysfunctional schools where there is no meaningful contribution by the parents.
The problems presented by these schools cannot be resolved by proposed legislation that would destroy the character and operation of schools that are operating in a democratic manner and making a contribution to sound education.
This may very well be a violation of the principle of participatory democracy, referred to above and enshrined in our constitution and hence may very well be unconstitutional.
All the relevant roleplayers must make their voices heard on this vital issue that affects the future of our children and our society.
In this regard there needs to be meaningful consultation to find solutions to the problems that plague dysfunctional schools without destroying or harming those schools that operate successfully involving the democratic participation of the parents of learners.
This is a great challenge for all concerned.
Devenish is retired professor of Public Law and one of the scholars who helped draft the interim constitution of 1994