By Dale T. McKinley · 4 Oct 2011
The first and most primary contradiction of the relationship between the Constitution and the majority of South Africans – who are black and poor - is to be found in the way in which the Constitution was forged. From the very beginning of informal talks in the mid-1980s involving the main component of the exiled national liberation movement - the ANC - and various representatives of the apartheid order, the process of negotiation out of which the Constitution would eventually emanate was largely an elitist, closed-door affair. A privileged minority coming from both sides of the racial, class and organisational divides and purporting to represent their respective ‘masses’, took all the major decisions with little meaningful participatory and popular processes involving those very mass constituencies.
As a result, the crucially important decisions taken as to what would be and not be in the Constitution, alongside the perspectives and beliefs informing those decisions, were largely reflective of the practical political context within which the negotiations transpired. As an example; the progressive social and economic clauses that found their way into the Constitution (such as a woman’s right to freedom of choice, the abolition of the death penalty, the right to education and the right to water) derived predominately from the more universalist and progressive politics/perspectives of some of the leaders of the long-exiled liberation movement participants.
Complementarily, their inclusion (given the apartheid National Party’s opposite stance) was clearly the result of an insider trade-off with other more conservative/status quo clauses such as the legal sanctification of private property and which effectively froze apartheid property relations. Further, the practical realisation of such progressive clauses were immediately constrained by the inclusion of the ‘reasonable’ test and the ‘available resources’ equation. When the final Constitution was made public after years of such closeted and elitist negotiations, it was then presented as a document which axiomatically represented the will and desires of the majority of South Africans.
There is little doubt that the post-1994 democratic institutional framework of government that the Constitution frames and legitimates has been broadly accepted. However, the practical application and implementation of subsequent policies of the new democratic government that flow from this framework and that are the major means through which the majority ‘experiences’ the various rights contained in the Constitution have become a constant source of serious political and social contestation.
At the heart of that contestation is the reality that a sizeable portion of South Africa’s ‘masses’ have a history of political and ideological struggle that lends itself to a close embrace – and indeed literal interpretation - of the stated intent and promises of the socio-economic rights clauses in the Constitution. In other words, when there is a stated ‘right to water’ then the practical promise is interpreted as meaning that water will be free irrespective of the ‘reasonable’ and ‘available resources’ riders. In this respect, it is crucial to understand that the associated - practical - expectations of the majority (mostly on the socio-economic front) have come to form the basis upon which that majority has largely related to the Constitution.
The fact is that there is a serious disconnect between the now privileged elites (of whatever racial categorisation) and the majority when it comes to how the Constitution is seen and experienced in everyday life. This raises crucial issues around the parallel disconnect between democratic and institutional legitimacy and power as framed by the Constitution. The cumulative result is that for the majority in South Africa the Constitution means very little in practical/lived day-to-day terms. However, as a symbol, as something which frames the democratic change in South African society and which contains the continued promise and representation of what can be hoped for, it retains degrees of meaning.
As a result and in the best liberation traditions of political mobilisation and struggle, the South African ‘masses’ have for the most part adopted a two-pronged ‘approach’ (relationship) to the Constitution; one strategic, the other tactical. The strategic ‘approach’ is informed by seeing the Constitution – as the framing legal/institutional and aspirational document of society - as symbolic; symbolic of the long-standing socio-economic aspirations of the majority and the potential promise of societal justice and equality. As such, it has broadly been accepted as having political legitimacy, as representing the system-framework for legitimising South Africa’s institutional democracy and developmental path and has become a core reference point for the reaffirmation of that legitimacy.
Conversely, the tactical ‘approach’ is informed by the practical experience of how the Constitution, as societal reference point and ‘supreme law’, is applied/pursued and also experienced through the various institutions of society and the state. In this case, the Constitution’s socio-economic rights clauses and promises have been alternatively ‘tested’ through political and social mobilisation - in the form of demands on the practical realisation of the promises and expectations created - as well as occasionally through the law itself (i.e., legal challenges/cases). It is on this tactical terrain that the majority relate to the Constitution as the contradictory ‘location’ for the potential securing, challenging and transcending of its rights-based limitations and possibilities.
And yet, all cumulative evidence throughout South Africa’s post-1994 transition strongly suggests that there are few illusions in the practical efficacies of the Constitution vis-à-vis the needs and desires related to people’s daily lives and struggles; in other words, that practical realisation follows from intent and promise. It might be a strategically crucial macro-reference point as well as a tactical ‘target’ when useful, but the track record so far confirms that in its present form, it is not and indeed cannot be, the foundation for the practical realisation of the majority’s needs/desires.
The ways in which the majority has experienced the Constitution is through the juridical and institutional application (or non-application) of the law that ultimately derives from it. In this respect, such experiences have clearly revealed the yawning gap between many of the fine words and ideas in the Constitution and the practical impacts of implementation in the real world. Here, there are numerous examples such as associated experiences in relation to the constitutional right to freedom of expression, right to information, right to healthcare and right to education.
Not surprisingly then, in a context where there is no serious alternative presently on the societal table (or horizon) to either the present socio-economic system of capitalism or the present constitutionalist form of government that frames it, one of the only meaningful ways in which the majority can ‘engage’ the Constitution is to consistently challenge, in various ways, its practical interpretation and implementation through the law and the institutions of the state and to continually invest in the possibility of its promises of justice and equality. This is exactly what organisations which arise out of those ‘masses’ have done and continue to do, whether that be through representative mechanisms, in the courtroom or on the street. Such ‘engagement’ has been further catalysed by the reality that to launch and sustain frontal assaults on the political and institutional powers of the state - including the Constitution itself - have simply not gained majoritarian currency (as of yet).
Depending on the ways in which such engagement with - and ongoing experience of – the Constitution unfolds, some will continue to turn to (and have already done so in the past) an incipient anti-systemic struggle. It is a struggle that intrinsically rejects both the systematising and more immediate practical efficacy of the Constitution and pursues degrees of parallel/ autonomous power and law such as people’s justice, reconnections to basic services etc. While this has been largely ignored and/or dismissed over the past decade or so – as the post-1994 institutional and legal framework of the Constitution has become practically and intellectually hegemonic – such struggle is part and parcel of the protests and conflicts that have now come to dominate South Africa’s political and social landscape.
The ongoing and intensified struggles being undertaken by organised workers and poor communities are not simply about corrupt politicians and lack of ‘service delivery’ but contain within them a basic questioning of the legitimacy of the law - alongside the institutional and class power that gives it meaning and location - as it is applied and experienced mainly in and through the Constitution. Ultimately, if the core ‘meaning’ of the Constitution itself becomes to be seen and experienced by the majority as a fundamental obstacle to the practical realisation of its stated intent and aspirational promise, then both its relevancy and legitimacy will, over time, crumble. As things stand now, it is difficult to imagine any other outcome.