By Dale T. McKinley · 28 Aug 2014
If the publicly expressed opinions of many opposition politicians, lawyers, academics, journalists and political commentators are to be believed then South Africa has already had several ‘constitutional crises’ and there are more hovering on the horizon.
Cast your memories back a decade and the messy saga involving then President Mbeki and his highly controversial attempts to protect his Police Chief Jackie Selebi. Claims flew thick and fast from several quarters that Mbeki’s actions constituted a serious ‘constitutional crisis’ given that he was abusing his Executive authority in direct violation of the Constitution. This was quickly followed by claims that Mbeki was fomenting another such crisis by trying to by-pass constitutional provisions around the separation of powers through his and the ANC’s attempts to politically control key state institutions such as the judiciary, the police and state-owned enterprises.
Then came the charge from a variety of quarters that the politically motivated and factional activities of both the National Prosecuting Authority and the National Intelligence Agency revolving around the arms deal and more specifically Jacob Zuma, were the gravest ‘constitutional crisis’ the country had yet faced. The ensuing furore had yet to subside before we were being told that yet another crisis was upon us due to the ANC riding roughshod over the Constitutional powers of Parliament by unilaterally recalling Mbeki as the country’s President.
No sooner had the new Zuma-controlled ANC and government taken the reins than two further ‘constitutional crises’ were being proclaimed. It was energetically argued that Zuma’s unceremonious removal and ‘political’ replacement of the head of the NPA was another gross abuse of the constitutional powers given to the Executive and thus undermining of both the NPA’s independence and the legitimacy of the justice system. Soon thereafter, Justice John Hlophe’s formal claim that a majority of Constitutional Court judges were ‘politically motivated’ in dealing with charges of political interference against himself was enough to spark frenzied pronouncements of an impending constitutional Armageddon.
But wait, there is more.
Over the last three years and into the present, we have evidently had a continuous series of existing and/or pending ‘constitutional crises’. There is the ongoing battle between the Public Protector (PP) and the Zuma crew centred on the PP’s Nkandla Report and involving the respective constitutional roles, powers and accountability of the PP and the Executive. Then there is the matter of the still-‘hidden’ Zuma spy tapes with the NPA and yes, once again the Zuma Executive, being accused of wilfully undermining the judiciary and indeed, the constitutional rule of law. And, as this is being written, the country is apparently facing its latest potential constitutional meltdown revolving around the respective actions and pronouncements of the EFF and the ANC in ‘desecrating’ Parliament, with Zuma and Nkandla again taking centre stage.
Most of these supposed ‘constitutional crises’ have certainly involved a range of attitudes, behaviour and activities that are of genuine and serious concern in any democracy. However, they are more representative of ‘classic’ institutional and political tensions/battles in a young democracy combined with a heavy dose of South African-specific political ego and party power-mongering framed by historic racial and class cleavages. They also have largely involved and represented the various shenanigans and interests of political and economic elites with the vast majority of citizens being relegated to bystanders. As such they cannot, either conceptually or practically be labelled as real ‘constitutional crises’.
The real constitutional crisis in South Africa has been playing itself out on a much grander, systemic scale and has been with us since the adoption of the Constitution itself. There are two sides to this crisis.
On the one side is a consistent crisis of democratic representation wherein the constitutional bedrocks of institutional federalism and a party-centred electoral system have ensured that the representational ethos and practice of those entrusted with democratic power and position is largely outsourced to those varied institutional forms and answerable to the elite interests and politics that control and manage them. Simply put, the representational ‘house’ that the Constitution built has, in macro-terms, largely institutionally marginalised and served to politically neuter the vast majority of the ‘demos’ itself.
On the flip side is an equally consistent crisis of social marginalisation and economic inequality that links directly to the constitutional sanctity of private property alongside the perpetual promise of the ‘progressive realisation’ of the Constitution’s socio-economic rights within ‘available resources’. In other words, and from the beginning, the Constitution provided the legal and institutional foundation for the maintenance and indeed expansion of the social and economic status quo whilst simultaneously promising the enjoyment of a range of rights which, if practically realised, would mean the effective destruction of that status quo. What this has produced is a systemic inequality (mostly paralleling historic divisions of class and race) in which the promise of mitigation and ultimately resolution is practically impossible. In metaphorical terms, what the Constitution ‘gives’ with one hand, it ‘takes away’ with the other.
Unlike the proclaimed ‘constitutional crises’ as above, the fundamental crisis in South Africa is to be found in the constitutionally framed and enshrined acceptance of a political architecture and socio-economic system that is incapable of conceptually catalysing and practically realising substantive democracy and equality of the ‘demos’.
Getting President Zuma and his Executive to respect the constitutional mandate and independence of the office of the Public Protector is important. Stopping the repeated practice of political interference and manipulation by the ruling party and Executive when it comes to the role and practice of legal/judicial institutions is also vital. But, these are problems and challenges, however difficult and messy that can be addressed within the constitutional framework. The same cannot be said for the combined crises of democratic representation, social marginalisation and economic inequality. These are organic to the Constitution itself and as such represent a very real, lived constitutional crisis that spans from past to present.
If we are to recognise and directly confront this crisis then it is not going to be enough to merely constitutionally discipline those in and with, political and economic power and/or make use of constitutional law to try and access rights. What is needed is for the ‘demos’ to reconstitute itself, through organisation and action, as the fulcrum of democratic voice and power. In doing so, the possibilities of reconstructing and then defending a constitutional order that is of, and for, that ‘demos’ can become more than just a dream.
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