Worryingly South Africa’s model democratic constitution is increasingly wrongly made the scapegoat for government failures to create jobs, slash poverty and provide quality public services.
Just the other day, Rural Development and Land Reform Minister Gugile Nkwinti said “the constitution has to help the community to advance. If advancement gets stalled then the constitution has to be changed”.
Justice Minister Jeff Radebe said about the constitution, there “are no holy cows”. “There are scare tactics the media uses that suggests we are not allowed to talk about constitutions and it seems heretical for us to say we might change the constitution,” said Radebe.
Most of the failures of government service delivery blamed on the constitution have in fact nothing to do with the constitution but can be attributed to failures by government itself.
Even if the aspects of the constitution that are supposedly blocking “transformation” are to be changed, it is unlikely that government’s delivery of public services will improve. It is more likely that in most cases government service delivery will in fact further deteriorate.
In fact, if not for the protection of the constitution right now, the effects of poor governance would have been even worse.
The problem is some ANC leaders look at the constitution as just any other document, subservient to ANC policies, and therefore open to change. Yet, the constitution is the overarching framework for all South Africa, the foundation stone of our democracy, the unifying symbol transcending racial, ideological and class divides.
The constitution is in fact the “Holy Grail” which should not be changed willy-nilly. The constitution provides us with a fair framework and set of rules and values – which binds everyone – under which we can solve our difficult problems.
President Jacob Zuma has previously endorsed the unconstitutional Traditional Courts Bill, saying chiefs must not buy into the legal practices of the “white man”.
The Traditional Courts Bill will disempower millions of rural women by not allowing them access to the formal justice system when they have been wronged, and gives chiefs the power to decide on the fate of women.
Zuma, then supporting the Traditional Courts Bill, claimed Africans “had their own way” of solving their problems through “traditional” institutions. “Let us solve African problems the African way, not the white man’s way,” Zuma said, to cheers from traditional leaders.
The South African constitution was not written by Americans or the Chinese. It was written by leading indigenous African legal minds, most of them supporters or members of the ANC.
The South African constitution is one of the greatest indigenous African legal documents ever written – admired by many cultures, societies and countries – including Western ones, outside the continent.
Some ANC leaders have what the late Chief Justice Pius Langa described as a “minimalist approach” to the values of the constitution and democracy. It appears they only obey those democratic precepts which favour them. Even worse, others have not fully embraced the idea of democracy at all.
Yet another problem is that sections of the ANC leadership elite think they are above the country’s laws – by virtue of them being “leaders”.
It appears increasingly that some individual ANC leaders reckon the constitution must be changed to give them immunity from their own personal wrong actions. Such calls rightly cause fear that any attempt to change the constitution even if it may be for legitimate reasons, may in fact be for personal enrichment.
It appears those in the ANC blaming the constitution for the failure of government have about four problems with the constitution.
The first is the property clause in the constitution, Section 25, which makes provision for “market value” to be paid for expropriated land for a public purpose, such as for land reform.
Even Nkwinti has conceded that the willing-buyer, willing-seller principle may be a problem but was not the “worst impediment” to land reform.
Inflated prices are of course a problem, but this definitely does not require a change of the constitution. The government can easily introduce a ceiling based on fair commercial values where appropriate – without changing the constitution. Importantly, bigger problems will remain, to undermine land reform delivery, even if the government changes the constitution to allow for expropriation without payment of land.
Another constitutional issue is apparently Section 217 (1) of the constitution which requires all organs of state to “have a procurement system which is fair, equitable, transparent, competitive and cost effective”. Former government spokesman Jimmy Manyi said because of this provision of the constitution, disadvantaged individuals regularly lose their court bids when trying to obtain tenders.
The real problem is that some individuals want government tenders to be given to them, their associates or family members, solely on the basis of their political connectedness or blackness, even though they may not have the capacity to deliver.
Radebe, Finance Minister Pravin Gordhan and head of the National Planning Commission Trevor Manuel, has repeatedly publicly warned that corruption in the government procurement system has become almost endemic.
Some ANC leaders also appear to have a problem with the sections of the Bill of Rights, chapter 2, in the constitution which enshrines freedom of expression and guarantees everyone the right to “enjoy their culture” provided it does not undermine other constitutional rights, such as gender equality.
Some ANC leaders do not want their shenanigans to be publicly exposed. But the ability to criticise government for poor delivery helps hold government to account. Governing honestly and effectively is the best antidote to criticism.
Cultural practices that undermine constitutional values, individual dignity or safety, degrade women or allow traditional leaders to do as they please with no accountability, cannot and should not be defended at all.
Lawyer George Bizos told the Farlam Commission of Inquiry investigating the massacre at Lonmin’s Marikana Mine that National Police Commissioner Riah Phiyega had alleged during a radio interview with radio presenter Redi Thlabi that criminals in South Africa were “absolutely brazen, because we have a beautiful constitution that allows rights”.
But Bizos rightly rejected blaming the constitution for a rise in criminality. Bizos cited former police commissioners Jackie Selebi and Bheki Cele, who had said that criminality among high-ranking police officers and police brutality, could be among the reasons for the rise in hard-core criminality.
“Couldn’t the criminality be a result of the inefficiency of the police force, as it was renamed? Couldn’t it be that they are brazen [criminals] because of the number of complaints received about police torture and ill treatment of arrested persons?”
In many cases since 1994, it was only after poor communities and civil groups used the constitution and appealed to the Constitutional Court that government eventually delivered on its constitutional duty to provide low-cost housing and HIV/Aids drugs for the poor.
Fixing the wrongs of the past does not need the constitution to be changed. So-called “anti-transformation” clauses in the constitution cannot be blamed for the failures of government.
The problem with all of these issues is not the constitution, but because either an incompetent public service (mainly because the best people are not appointed to jobs) and wastage and corruption goes unpunished because the culprits are powerful party leaders.
Some ANC leaders want to enrich themselves and their families and friends, rather than empower the largest amount of citizens.
Some ANC leaders want to hide information about their own corruption from their supporters, lest their supporters find out and realise that the poor are being used as covers for poor delivery and corruption.
Honest, competent and accountable government and leaders – and constructive partnerships between government, communities, business and civil society and all interest groups; and deepening the democracy, going beyond narrow views of democracy and the constitution, will help substantially.
*This article was published in Daily Dispatch. To view the article on their website click here.