The South African Civil Society Information Service

Best of SACSIS: The Problem with South Africa's Constitution

By Jane Duncan · 6 Sep 2011

Picture: Xevi V

A significant debate has arisen between Deputy Minister of Correctional Services Ngoako Ramatlhodi and the University of Cape Town’s Pierre de Vos on the appropriateness of South Africa remaining a constitutional state.

In an article in The Times newspaper, Ramatlhodi argued that the supremacy of the constitution is disempowering the democratically elected government, whose decisions are second-guessed by a judiciary that still remains largely untransformed.

Ramatlhodi attributes this problem to damaging compromises agreed to during the multiparty negotiations of the early 1990’s, which led to, in his words, “…the black majority [enjoying] empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society,” According to Ramatlhodi, this means that “…[Formal] political rights conferred on blacks can be exercised only within the parameters of the old apartheid economic relations.”

De Vos rejected Ramatlhodi’s views, calling them “bizarrely immoral” and dangerous as they attacked the integrity of South Africa’s hard-won constitutional order. He accused the Deputy Minister of using the constitution and its supporting institutions as scapegoats for failures of government delivery.

Ramatlhodi’s article echoes the views of the Secretary General of the ANC, Gwede Mantashe, who also criticised the constitutional Court for “acting in opposition to government.” So it is likely that these views are not confined to these individuals, but have broader support in the ANC.

Ramatlhodi’s arguments are clearly self-serving, and reinforce a trend in the ANC’s behaviour to attack fundamental rights and freedoms. But aspects of his argument ring true, and the standard constitutionalist argument made by the likes of de Vos are inadequate to the task of responding to these criticisms. The contradictions of the type of transition that South Africa chose led to a constitution that is not nearly as transformative as they make like to think. In fact, in certain respects, the Constitution is a profoundly conservative document.

Constitutions are meant to derive their legitimacy from the fact that they are written ‘by the people, for the people’. The idea that ordinary working people, rather than elites, can determine a country’s ground rules is relatively new in world history. In order for a Constitution to genuinely represent the will of the people, the Constitutional Assembly that writes it must be sovereign.

As Ramatlhodi points out, the South African constitution is a product of the balance of forces that existed when it was drafted. Its genesis can be traced back to the fall of the Berlin wall and the unwinding of communist rule, and the ensuing rise of neo-liberalism and American hegemony. These events led to Soviet support for armed struggles drying up in different parts of the world, including Southern Africa, precipitating a wave of negotiated settlements. Many liberation movements were on the back foot when they entered into negotiations with their adversaries and negotiated from position of relative weakness.

The South African liberation movement faced particular challenges: after the mass struggles of the 1980’s, the movement was weakened by the mass repression of the States of Emergency, and the state sponsored violence in the early 1990’s worsened matters. The liberation movement’s weaknesses were to find expression in the negotiations and resulting constitutional framework.

Stellenbosch University’s Sampie Terreblanche has recounted how formal negotiations were accompanied by parallel, informal, economic negotiations with corporate South Africa. These informal negotiations led to concessions by the ANC on the inevitability of a neoliberal growth path for South Africa, at least for the foreseeable future. This resulted in the ANC conceding a '50 per cent' solution for South Africa's crisis, where the upper 50 per cent of society were incorporated into the economic mainstream, while the lower 50 per cent were confined to its margins, although they were incorporated politically through franchise rights.

In any transition, the sequencing of transitional measures is key. All organisations in the liberation movement agreed to the convening of a Constituent Assembly. But the movement was divided about the ANC’s call for an interim government and Parliamentary elections to precede the Assembly. Some organisations wanted the Assembly to be convened without an interim government, which would have placed the control of the constitution-writing process firmly in the hands of the mass movements.

But the ANC argued that negotiations and power sharing for an interim period were necessary to ensure the buy-in of the apartheid government and the white right, and to prevent the country’s collapse into a full-scale civil war. The ANC won the day on this argument, and the Convention for a Democratic South Africa (Codesa), followed by the Multi-Party Negotiating Forum, negotiated an interim Constitution and 34 constitutional principles as a framework for the final constitution. This Constitution would be subject to ratification by the Constitutional Court.

This means that South Africa’s constitution was drafted, not by a Constituent Assembly, but by a Constitutional Assembly, whose work was circumscribed by the agreements arrived at during negotiations. While the process invited public submissions and was open to the media, many of the most contentious issues disappeared in expert committees at critical moments.

These measures stripped the Assembly of its sovereignty, as an unelected body set the framework for South Africa’s future. The manner in which the Constitution’s parameters were developed has limited the democratic form and content of South Africa’s constitutional order. This problem is now coming back to bite the country.

A clause was also inserted guaranteeing the right to property, where property may only be expropriated for a public purpose and in the public interest, and subject to compensation. So in a cruel twist of fate, the ANC government took on the responsibility of paying for the property that black people had been historically dispossessed of by the white minority.

The consequences of this concession to the white minority are starkly apparent. Property relations have remained largely untransformed and land redistribution through the ‘willing buyer, willing seller’ mechanism has been largely a failure.

The socio-economic rights regime in the Constitution is not geared towards changing these structural problems. According to the Socio Economic Rights Institute, a mere twelve socio-economic rights cases have been heard by the Constitutional Court in the seventeen years of its existence. Some of these cases have resulted in spectacular victories, and South Africans have the judicial activism of the very civil society that Ramatlhodi dismisses, to thank for that.

But litigants cannot get rights on demand; they can only persuade the court to ensure that government realises rights progressively. Furthermore, the right to work is not included in the Constitution.

In effect, the Constitution mapped over onto Terreblanche’s “50 percent solution,” by extending formal political participation rights to formerly disenfranchised black people, while cementing political agreements that left white control of the economy largely intact. But the struggle was never for political participation only; it was for equality on all levels of the social formation, including the economy.

To the extent that the Constitution cements the political agreements that left white control of the economy largely intact, then the current Constitutional framework is not sustainable. Under these conditions, it should surprise no one if rights talk is experienced by many black people as a strategy by white people to maintain their privileges.

But in making its argument about the Constitution and its guardians, the ANC is complaining about a problem of its own creation. It was the ANC that conceded negotiations and made the compromises that led to the Constitution that it now criticises so bitterly. In the political conjuncture of the early 1990’s, could the party have made different choices?

In his book, An Ordinary Country, Neville Alexander attempted to answer this question. He argued that while the liberation movement was undoubtedly weakened, the National Party regime too was forced by global circumstances to turn the country’s economy outwards and boost its competitiveness, as inward focussing growth was no longer sustainable.

But the regime could not achieve this neoliberal restructuring without gaining global acceptance: hence the need to end formal apartheid and enter negotiations. According to Alexander, if the ANC had pulled out of negotiations, violent repression would probably have intensified for a short period, but the regime would have been forced to re-engage with the liberation movement anyway, and most likely on a much weaker footing.

Furthermore, the question that needs to be asked is whether negotiations averted violence, or merely delayed it till a later date.

It should surprise no one if, twenty years after it was first raised, the demand for a Constituent Assembly is raised once again. There are real dangers in even raising this possibility.

Unless this demand is driven by a progressive mass movement, it may become a vehicle for social conservatives to scrub out the most progressive aspects of the Constitution, and reinstate the death penalty, eradicate gay rights, weaken the position of women, eradicate media freedom and establish a kleptocracy. Once again, the balance of forces is key.

But for as long as South Africa has a Constitution that can only tinker at the margins of the problem of poverty and inequality, the document and its supporting institutions will remain vulnerable to attack.

It is telling that Ramatlhodi and Mantashe have not raised the possibility of a Constituent Assembly to address the Constitution’s deficiencies, but have instead proposed the replacement of Constitutional sovereignty with Parliamentary and executive sovereignty. This choice suggests that, once again, the party will favour an autocratic rather than democratic solutions to South Africa’s national question, which will, of course, be no solution at all.

If constitutionalism is to survive in South Africa, and survive it must, then it must be based on a Constitution that genuinely reflects the will of the people. This time around, ordinary South Africans must accept nothing less.

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