Last week, during an election campaign in Mpumalanga, President Jacob Zuma called on his supporters to give him a “huge majority” to be able to amend the constitution to remove “certain hurdles”.
Because he did not specify exactly what aspects of the constitution he and the ANC wished to change, opposition politicians demanded to know in detail what provisions would be changed.
It is submitted such proposed changes should be clearly spelled out before the election, so that the electorate can make an informed judgment on the issue. Changes to the constitution should only take place with caution and circumspection to ensure political and economic stability in South Africa.
South Africa has a rigid constitution in legal and constitutional terms, since special procedures, set out in section 74, are required for amendment of the 1996 constitution, thereby establishing the supremacy of the constitution.
The amendments to the constitution can be classified into five categories explained below.
Category 1
Section 1, which defines the seminal values, such as human dignity and equality, on which the constitution is premised, and section 74(1) of the constitution, the entrenching provision itself, may only be amended by a bill passed by the Assembly with the supporting vote of at least 75 percent of its members together with the support of at least six of the provinces in the Council of Provinces.
Category 2
Chapter 2 of the constitution, which embodies the Bill of Rights, may only be amended by a bill passed by the Assembly supported by a vote of at least two-thirds of its members together with the support of at least six of the provinces in the Council of Provinces.
Category 3
Any other provision of the constitution may be amended by a bill passed by the Assembly, supported by a vote of at least two-thirds of its members, together with the support of at least six of the provinces in the Council of Provinces, provided that the amendment:
(i) Relates to a matter that affects the Council of Provinces;
(ii) Alters provincial boundaries, powers, functions or institutions; or
(iii) Amends a provision that deals specifically with a provincial matter.
Category 4
In an instance where a bill, in whole or in part, affects a specific province or provinces, it may not be adopted by the Council of Provinces unless it has been approved by the relevant provincial legislature or legislatures. This is an example of ratification by an institution that does not form part of the legislative process, and it is intended to protect the interest of the province concerned.
Category 5
All other provisions of the constitution not covered by the categories referred to above may be amended merely by a two-thirds majority in the National Assembly.
There is, however, another potential obstacle to changing the constitution.
It is known as the Basic Structure Doctrine, which the Supreme Court of India, in its jurisprudence, has pioneered.
According to this doctrine, the Constitution of India has been interpreted to impose certain substantive limitations on the power of the legislature to amend the constitution at all, despite the fact that article 368 of the said constitution appears to confer an unlimited power of amendment on the legislature, by virtue of the mechanism of a two thirds majority.
According to this doctrine, the question is asked whether a process of radical restructuring of the constitution might not qualify as an “amendment” at all.
In its seminal judgment, in case of Kesavananda versus State of Kerala, the Indian Supreme Court held that the amending power conferred by article 368 did not extend to any amendment which would alter the basic structure of the constitution, such as, for example, the independence of the judiciary.
The Basic Structure Doctrine is an inordinately controversial one and there are cogent arguments for and against it.
As far as South African constitutional law is concerned, in the case of Premier of KwaZulu-Natal versus President of the Republic of South Africa, the Constitutional Court left open the possibility that it would incorporate this doctrine into our law.
In this case, Judge Ismail Mahomed merely observed that this profound and indeed potentially revolutionary doctrine has engaged the Indian Supreme Court for some years.
As a result of this and other South African cases, such as United Democratic Movement versus the President of the Republic of South Africa, the exact status of the Basic Structure Doctrine remains unclear in South Africa, since the court did not actually hold that it applies in our constitutional law. It is submitted, however, that, should parliament, using a legislative act, patently violate our democratic dispensation, and thereby undermine the fundamental principles on which the constitution is premised, then the exercise of the Basic Structure Doctrine, as explained above, would be justified.
It is, however, further submitted that the approach of the Constitutional Court in Premier of KwaZulu-Natal and United Democratic Movement cases, referred to above, is the correct one, in terms of which there is neither express recognition nor rejection of the doctrine. At most there is an implied recognition.
In effect, the doctrine is waiting in the wings should circumstances and a crisis situation arise that require the Constitutional Court to invoke its application.
In the light of the above explanation, it is submitted that any substantive change, as opposed to a mere technical change, to the constitution, is a complex issue, potentially destabilising, fraught with political and constitutional difficulties and is therefore unlikely to be proposed.
Nevertheless, Zuma’s political statements to his supporters are most unfortunate since in the interest of the country clarity on this issue is essential for political and economic stability in South Africa.
* Devenish is professor emeritus and senior research associate at the University of KwaZulu-Natal and one of the scholars that assisted in drafting the interim constitution in 1993.