In six articles that recently appeared in Politicsweb, Prof Koos Malan provided an expert analysis of many of the problems facing the constitution.
He is clearly not a fan of the 1996 constitution. He questions the wisdom of those who have put their faith in the prospect that it would “usher in and guarantee peace, reconciliation and the protection of rights for all.”
He goes on to question the premises on which so many South Africans have based their faith in the constitution – that it is ‘supreme’, that it contains adequate checks and balances – and that it will be administered by a fearless and impartial judiciary.
Many of the points that he raises were made in a speech on “Threats to the Constitution” that FW de Klerk delivered in Potchefstroom in 2009. In that speech De Klerk warned against the following seven threats to the Constitution:
The first threat was the possibility that Parliament might legally amend the constitution. This has not yet happened. However, the ANC’s intention to amend Section 25 to make it explicitly possible for the state to expropriate property without compensation would seriously undermine the negotiated agreements on which the constitutional settlement was based.
The second threat comes from legislative erosion. In this process constitutional rights are progressively whittled away by provisions hidden in ordinary legislation. So, for example, the Promotion of Equality and Prohibition of Unfair Discrimination Act goes much further in its definition of hate speech than the very limited definition in section 16(2) of the Constitution. The clear prohibition of discrimination on the basis of race is now routinely negated in law after law.
The third threat comes from executive neglect. The government simply does not bother with elements of the constitution that it does not like. This is particularly apparent in the manner in which the constitution’s language and cultural provisions have been systematically ignored since 1994. English is the de facto sole official language; our official languages do not enjoy parity of esteem; and very little has been done to develop our indigenous languages.
The fourth threat is executive incapacity. The State is incapable of effectively ensuring key rights because of inadequate service delivery. It is failing to protect the lives of people; to safeguard women and children; to provide proper health care; to provide decent education; to assure equal access to the courts and to advance equality.
The fifth threat comes from the possibility that the constitution might increasingly be interpreted by the courts to favour the executive or a single section of society. In 2005 the ANC’s National Executive Committee called for “the collective mindset of the judiciary”… to be brought “into consonance with the vision and aspirations of the millions who engaged in struggle to liberate our country from white minority domination”.
As Dr Malan points out, this call has been heeded. In Van Heerden v the Minister of Finance the Constitutional Court ruled in 2004 that discrimination to advance equality was automatically fair provided only that it complied with three internal tests. The judiciary now generally adheres to the ruling party’s transformationist approach – particularly in judgements involving the interests of minorities.
The sixth threat comes from the possibility of political subversion.
A few years ago President Zuma came perilously close to dismantling constitutional government by capturing key institutions – including the National Prosecuting Authority - that were supposed to be independent guarantors of constitutionality.
It should also be recalled that the ANC’s Alliance partners – The SACP and COSATU – have profoundly unconstitutional agendas: they have openly called for the establishment of a dictatorship of the proletariat as the only route to the imposition of a communist state. The ANC’s National Democratic Revolution ideology has unconstitutional centralist tendencies that seek to bring all organs of the state (including the judiciary), the professions and society under its control.
The final threat that De Klerk identified was, perhaps, the most insidious. “It is our own apathy. It is our unwillingness to support our Constitution and to claim the rights that it guarantees. We seldom stop to think that virtually everything that we do; everything we own; everything for which we aspire; depends on the preservation of our Constitution and the freedom and rights that it guarantees. Somehow we continue to regard the Constitution as something peripheral to our lives; something to which we can turn our thoughts only when the need arises.”
Many of the constitutional failures that Prof Malan lists could perhaps have been avoided if South Africans had taken more resolute action in defence of their rights – if business had resisted the first encroachments of property rights, if the professions had rejected the ANC’s hijacking of their representative organisations – and if universities had opposed state intrusion into their affairs.
Thus, there has long been well-placed concern regarding the erosion of the constitution – but what does Prof Malan want to put in its place?
He calls for a new constitutional order in which “emphasis should also be placed on powers vesting in self-governing communities and autonomous institutions of civil society and the business sector.” “Communities, more specifically cultural communities with the desire and ability of self-government – taking and executing decisions on their own affairs – must have the constitutionally allocated power to do so.”
As Malan concedes, the possibility of the ANC agreeing to a constitutional amendment to make this possible are remote. In fact, they are non-existent. If FW de Klerk – with all the power that he could then muster - could not persuade the ANC and other parties to accept some form of power-sharing at the executive level in the 1996 constitution – there is no possibility that the ANC would now agree to the kind of amendments that Malan has in mind.
Most of Prof Malan’s criticism of the 1996 Constitution lies more in the manner in which its provisions have been eroded by the state and misinterpreted by the courts – rather than in the Constitution itself.
It is very unlikely that we will ever be able to negotiate a better Constitution than the one we have now. Instead of seeking impossible constitutional amendments, we should instead rally around our present constitution and defend its provisions as they were negotiated. But, as FW de Klerk pointed out 11 years ago, this will require all those who are concerned about the future of the country – including business, NGOs, the professions and ordinary citizens – to oppose the erosion of the constitution by the governing elite.
We have recently witnessed the wonderful generosity of business leaders in donating funds to combat COVID19 – but how much would they be prepared to invest in opposing expropriation without compensation – which might in the long run be equally destructive of our national well-being?
Principled defence of the 1996 constitution would be much more likely to generate national and international support – than a call for a reversion to a system based on collective cultural identities. Also, proper observation of the provisions in the constitution that deal with language and cultural rights and that prohibit unfair discrimination – might be the best way to safeguard the language and cultural rights of our communities.
Dave Steward is Chairman of the FW de Klerk Foundation.
Koos Malan’s series can be read at the links below:
The false gospel of the Constitution (I)
Is the Constitution really supreme? (II)
Our great constitutional divergence (III)
Our transformationist ConCourt (IV)
