Economic modality should serve constitution

Published May 24, 2016

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Richard Kurt Pfaff and Vanessa Ludwig

A defining factor of the current discourse on the socio-political condition in South Africa concerns the implementation of and adherence to the constitution.

Aside from what has been previously stated in regards to constitutionalism, it can also be asserted that the domestic constitutional discourse could result in other areas of societal re-examination.

Besides the speculative re-examination of land rights, the electoral system and powers of the Presidency, it could also result in a re-examination of the domestic economy.

Although there have been numerous protracted policy debates on the direction of the economy, there has been little debate around the kind of economic modalities the constitution allows.

As the current constitutional crises recentre the constitution in the political psyche of the populace, so too could it call into question constitutional economics.

The analytical framework of constitutional economics places particular emphasis on the view of “politics” as a means of economic exchange, with the parameters of that political economic exchange being laid out by the constitution.

Politics is not understood in this normative analytical framework as perpetually conflictual, or as a quest for the ideal. It is understood as rational choices made by autonomous beings within the parameters of a set of mutually agreed-upon rules, and such a set of rules being called a constitution.

Because the framework understands politics as not perpetually zero sum, it can also be utilised as a means of conflict resolution and consensus building.

By asking the political actors to utilise such a political economic discursive framework, it provides a way out of the zero-sum cul de sac. The way out is predicated on the understanding that there needs to be a voluntary exchange or reciprocal relationship.

The value or loss of these exchanges is measured through the quantile of the constitution’s values, ethics and principles, which, in the case of South Africa, include the rights to human dignity, equality, non-racialism, non-sexism and universal political participation based on accountability, responsiveness and openness.

The rights discourse has dominated citizens’ demand for access to basic goods and services for the past two decades without necessarily questioning the relationship between the macroeconomic framework and the constitutional framework.

For example, in chapter 2, the Bill of Rights in the constitution details in section 27 the rights to health care, food, water and social security.

If we examine section 27(1) (a), the right to food and water, we could begin to question if the current dominant macroeconomic framework, liberal capitalism, has within it the values, ethics and principles to actually fulfil this right to all citizens.

Bearing in mind that liberal capitalism, as the by-product of Western/Northern colonialism, is predicated on the right to private ownership, and being cognisant that the constitution advocates the progressive realisation of rights (which were historically deprived from black people as a collective during the colonial project), we perhaps need to adjust our current understanding of the relationship between the macroeconomy and the supremacy of the constitution.

From that vantage point, there appears an inherent tension between the individualistic prescriptions of liberal capitalism and the collective orientation of the constitution.

An example of measures for collective redress, because of historical deprivation in the constitution, would be section 25(6).

In a teleological sense, what is needed is a national discourse on the nature of the present and possible economic modalities.

This discourse has to be grounded in a mutual understanding of, and appreciation for, the constitution. After all, we cannot have a discussion on how resources are distributed in this country if we do not agree on the rules guiding that discussion.

If we, as a nation, are sincere about the supremacy of the constitution and the progressive values, ethics and principles it espouses, and not only in relation to the behaviour of the executive and the legislature, then surely we should begin to talk about if and how our present economy can be democratised in accordance to the constitution.

l Pfaff and Ludwig are both from the Gei-Heis Collective. The Gei-Heis Collective is a development consultancy and think tank

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