‘Defend our constitution’

Henk Kruger

A file photo of about 80 people who took part in a service delivery Protest from the Good Hope Centre to the Civic centre to hand over a memorandum to the City of Cape Town. Picture: Henk Kruger

The content of the ANC’s recent policy discussion document proposes a second transition involving, inter alia, the realisation of socio-economic rights.

In the document there is also a strong indication that in so doing, the ANC is contemplating major changes to the constitution. This has precipitated considerable comment and debate in the media on the wisdom of such action.

For this reason, it is submitted that it is necessary to assess the merit and operation of the South African constitution and the system of democracy it has produced. Is the constitution, indeed, defective and, as a result, is democracy found to be wanting in South Africa?

We have come a long way since the adoption of the interim constitution on April 27, 1994.

South Africa is in every respect – morally, politically and economically – inordinately better than it was under the apartheid regime.

Our system of democratic government, although imperfect, is vibrant and operating.

We are, as yet, not a mature democracy, and in this regard as a nation we still have a long way to go, among other things, in ameliorating poverty, unemployment and the economic inequalities that still blight the people of South Africa.

On the positive side, to our credit, successive elections, national, provincial and local, have been free and fair.

However the body politic in South Africa, as a one party dominant state, faces challenging problems relating to accountability and transparency, which are essential for a working democracy.

Political opposition, in electoral terms, is at this stage of our history too weak and divided to pose a real threat to the ANC government. This gives rise to ineffective accountability and insufficient transparency in relation to government administration.

This state of affairs facilitates political patronage on the part of the ANC government with resultant nepotism and corruption, which appears to have become endemic and prejudicially affects service delivery.

This has resulted in militant protests in relation to the lack of service delivery at the local government level, some of which have been violent.

When South Africa embarked on its historic democratic pilgrimage in 1994, with Nelson Mandela at the helm of the ship of state, the executive, with Mandela as president, occupied the moral high ground for five years.

Relatively speaking, this was a golden age. However, since the Thabo Mbeki presidency, the strong moral ethic of executive government has declined.

The Jacob Zuma presidency is profoundly compromised by virtue of the president’s entanglement with the law in relation to his personal life and the failed prosecution for fraud and corruption relating to his conduct.

This has rendered him a weak executive president who struggles to achieve essential political goals and maintain a semblance of unity with the ANC tripartite alliance, with its warring factions.

The legislature is the second branch of government, which in addition to making laws has the task of overseeing and scrutinising the executive. Opposition parties are electorally too weak and divided to perform this task as effectively as it should be done.

If the government is actually threatened electorally in a genuine two-party or multi-party system, delivery of services will improve dramatically.

ANC parliamentarians, in effect, act as a rubber stamp for the ANC which is ensconced in Luthuli House, and as a result the essential divide between party and state is blurred.

The third branch of government is the judiciary. An important process of transformation in the character of the judiciary has taken place in relation to race and gender.

As one of the three branches of government, it is by far the one that is working the most effectively as an independent and efficient institution in upholding and promoting the constitution.

In very important judgments it has, without fear, favour or prejudice, upheld the constitution, invalidated laws and executive conduct in conflict with it. For example, in the Grootboom and Treatment Action Campaign cases, it has promoted and facilitated socio-economic rights in relation to housing and health.

In so doing, it provided important checks and balances inherent in the constitution.

However as a result, it has incurred the wrath of the executive government and ANC politicians and now is threatened with a “review” of its powers, its judicial review and its testing right.

As far as politics are concerned, allegiance is still determined to a greater or lesser extent by race, rather than on other important considerations. In this regard, a greater maturity is required. What is required is a division in our political landscape premised on, for instance, economic policy, as occurs in Europe, with parties found to the right and left of centre, depending on their economic policies.

What is required for this is a reorientation of political parties, which could occur if the ANC tripartite alliance disintegrates and which now appears to be inevitable.

What is abundantly clear, however, is that the political problems experienced by South Africa do not stem from a defective constitution, but rather from a weak, corrupt and ineffective executive government.

Indeed, we have an exemplary constitution which guarantees our fundamental rights and is admired internationally.

Furthermore, the constitution was the product of a unique and historic political settlement between all the major roleplayers in South Africa.

It ended centuries of political strife and injustice and promised all our people a place in the sun. In so doing, it brought to an end political violence in South Africa.

Although as a dynamic phenomenon, the constitution must develop and adjust, it should under no circumstances be amended to suit the whims of the governing party, embarrassed by the operation of its inherent checks and balances.

We must defend the constitution and the principles of liberal democracy inherent in it, at all costs, if we are to remain a free and democratic people.

l Professor Devenish is senior research associate at UKZN and one of the scholars who assisted in drafting the interim constitution.