The Constitution is not absolved from the dangers of human error

The IEC recently held elections and the next polls will be in two years. Picture: Chris Collingridge/African News Agency (ANA) Archives

The IEC recently held elections and the next polls will be in two years. Picture: Chris Collingridge/African News Agency (ANA) Archives

Published May 28, 2022


By Sihle Lonzi

Speaking in a ANC Youth League task team political school conference, former President Thabo Mbeki advanced a view that a constitutional democracy is of moral and ethical superiority to a parliamentary democracy.

The basis of his argument is that, “even elected structures like Parliaments need to be governed by certain values which must be very fundamental in the making of South Africa.”

Put differently, Mbeki appears to be anxious about the idea that a group of individuals, elected to serve the people, can be a law unto themselves. That there is a danger in allowing the subjective whims of those in parliament to be reflected in objective reality. In other words, Mbeki says to us that the constitution of South Africa must operate as a platonic document which guides society on universal laws, values and ethics – untouched, untainted nor influenced by the fallible and error-prone human mind.

In simple language, the former President of the ANC is arguing that people make mistakes even if they are elected leaders. Therefore, we cannot allow them to serve the people of South Africa without a “universal” and binding document to watch over them.

He presents his own organisation, the ANC, as a case study. He argues that it has become generally accepted, even within the ranks of the ANC, that there is a decline in the quality of its membership. He made the same point in his address in the Free State, stating that the people the ANC is recruiting, and electing into positions of power and influence, are morally bankrupt and have used the ANC as a vehicle for self-enrichment, at the expense of the people of South Africa.

He then goes on to argue that there is a great potential for these same morally bankrupt individuals to find themselves being deployed in Parliament, and if there is no binding legal document outside of their political influence, they will reproduce their bankruptcy and corruption to the general public. Therefore, Mbeki argues, constitutional democracies are better than parliamentary democracies.

The easy and lazy rebuttal to this utopian argument advanced by Mbeki, is that it is human beings after all who write laws and who wrote the Constitution. That the constitution is not a platonic document, nor does it have universal truisms which are uninterrupted nor influenced by human subjectivity.

This easy response would do enough to subvert Mbeki’s argument, which relies on the purity of the Constitution. Any layman would stand up and say, “but Mr President, the Constitution is not pure. The Constitution is written by ordinary people like me and you. It is, therefore, not absolved from the dangers of human error and bankruptcy you speak of.”

The layman would be correct! Implicit in Mbeki’s argument is the idea that the pages of the the constitution fell from Mount Sinai like the 10 commandments in the Bible. That they cannot be altered, changed nor rectified. Mbeki is obviously wholly wrong, and the lay man would have won the debate right there and then. Common sense would have prevailed!

However, my pen is not concerned with the common sense arguments and rebuttals against Mbeki’s admiration for constitutional democracies. I will be advancing a more ideological objection. Let me begin by saying that the idea of a constitutional democracy is only persuasive to us on the left, if and only if, the constitution serves the people of South Africa, not the economic elite.

My immediate submission is that in the context of global capitalism, and the neoliberal monopoly capitalistic environment of South Africa, any legislative document will always protect the interests of the economic elite to the detriment of the people.

I draw this understanding from revolutionary theorist, Friedrich Engels, who was one of the sharpest critics of the political economy. Engels viewed the state, and all its arms, as “a product of society at a certain stage of development.”

He continued to argue that by giving birth to the state, or loosely put the government, society admitted that it had failed to resolve its primary contradictions. Therefore, it needed “to have a power, seemingly standing above society, that would alleviate the conflict and keep it within the bounds of ’order’.”

I want to spend some time on this because many of my peers on the left abuse this quotation, which was later reproduced and given greater meaning by Vladimir Ulyanov Lenin, a Russian revolutionary and theorist, without fully understanding its complexity and nuances. I will try my best to simplify this phrase which has become very popular over the years that; “the state is a product of irreconcilable class antagonism” so that it may be easily understood by all readers. The basis of Engels’s argument, who was also borrowing from Hegel before him, is that society is engaged in a permanent struggle for resources. That there are contending economic interests which govern how two groups in society interact with each other, namely the haves and the have nots. When these groups fail to find each other and resolve among themselves how they plan to share the means of production, the land, banks and all commanding heights of the economy, they outsource this responsibility to the government, the “state”, to do it on their behalf.

To use a very basic example, assume that in an isolated community, when you fight with your neighbour over how much land each of you are entitled to, you either call the police, go to the chiefs, go to the title deeds office, or seek recourse with the courts. The common denominator here is that after failing to resolve your antagonisms with your neighbour, you call on arms of State or government institutions to come and resolve the aggression or dispute on your and your neighbour’s behalf.

Using this simple example, I want to believe that you can now understand why Engels argued it became necessary for people to give birth to the State. An external power to “alleviate” conflicting economic interests. However, both Engels and Lenin quickly realised that the State is not a fair arbiter of contending economic interests. They realise that the same state comes out of the same class and conflict-ridden society, therefore, it can only follow that this state, this government, is likely to be affected and influenced, in one way or the other, by the same class antagonism. Just like Mbeki’s constitution, the state is a product of the very people it claims to be independent from.

The courts, the judges are a product of the very people they claim to be independent from. The police, the politicians, the soldiers and all government officials are a product of the very communities that they claim to be independent from.

The harsh reality of this ideo-political paradox, is that those who control the means of production, the economic elite, are likely to control the State because the same State, and all its officials, relies on them to sustain itself. The State is rendered and reduced to a mere bodyguard of the rich and wealthy.

The Constitution becomes a bible and rule book which is used by the economic elite to protect themselves and their selfish economic interests. When a rural community stands up against the capitalists who want to take their land and use it for mining, it is the wealthy capitalist who is able to access the courts, the politicians and all those in positions of power, so that they may intimidate the poor and protect the economic interests of the rich.

Mbeki’s admiration of constitutional democracies fails to acknowledge this objective ideo-political truism. A constitutional democracy does not give land to its rightful owners, it does not ensure that all citizens have access to education, healthcare, water, electricity, land and all other basic human rights and services.

The Constitution is a mere newspaper to be read and enjoyed by the rich, and a violent warning sign to intimidate the poor! Constitutional democracies are a safety net for the economic elite, so that even when the people elect a progressive government, with new and progressive policies, a captured chief justice will stand in their way.

* Sihle Lonzi is a student at the University of Cape Town, studying Economics and Philosophy. Former UCT SRC member for two terms. He is a member and activist of the EFF Students’ Command (EFFSC). He writes in his personal capacity.