Consulting citizens: Addressing the deficits in participatory democracy

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‘Democracy’ is a pliable, and much abused concept, yet constitutional law cannot do without it. It is usually linked to the equally flexible notions of rule of law and constitutionalism. Due to many changes in public life around the world, entrenched ideas of governmental propriety, including being democratic, are undergoing a ‘loss of meaning’. The Constitution of the Republic of South Africa, 1996 explicitly requires democracy to be participatory. Despite various official efforts to formulate the modalities of public consultation and an established routine of public hearings and calls for comment on draft legislation and policies, it has not developed beyond a ‘box-ticking’ exercise, sometimes amounting to outright abuse. As a corrective to the shortcomings of standard electoral democracy a novel approach to the involvement of the citizenry in contentious decision-making has emerged in many parts of the democratic world. It takes the form of citizens’ assemblies composed to achieve descriptive representation rooted in an age-old method of randomised selection, known as ‘sortition’. To employ these mechanisms to realise genuine participatory democracy would require surmounting the difficulties presented by the complexity of South African society. Modern technology and advances in sortition methodology hold promises of overcoming the difficulties, but it would also require a political sea change.