THE SILENCE OF THE CONSTITUTIONALISTS

"The disaster does not take the form of a radical elimination of what existed previously; rather the things that history has condemned are dragged along dead, neutralised and impotent as ignominious ballast."[1]

Preening in his Panama hat exactly a year ago today, Bheki Cele announced: "Come 23.59pm tonight, life stops."

In the sense suggested by Cele, life has yet to restart.

For instead of a world structured by the democratic power and transformative vision embodied in our Constitution, for 365 days life has been characterised by two anti-constitutional features. First, a belief in the indefinite need for expedited state power: law-making by the Executive rather than by Parliament. Second, a pathological concern about survival above all else: lives and livelihoods rather than dignified living.

Constitutional life will not restart until there is a widespread, unpremeditated and attentive facing up to, and resisting of, the fact that our Constitution has been deferred for the sake of expediency and narrow, measurable metrics. But this failure to comprehend and to resist is not our only problem. Because for 365 days we have also witnessed a setting aside of constitutional living by many who just 366 days ago presented themselves as leading constitutionalists.

* * *

Who first revealed themselves as constitutional pretender? It is difficult to tell, for it all happened so suddenly and so comprehensively.

Ramaphosa and his coterie of commanders were clear at the outset: "We are now in a war. We are in a war zone and our rights will inadvertently be affected and restricted for our own survival." They made good on their rhetoric. For they proceeded to command rather than lead, to brutalise rather than serve—making war on their own people, as former Justice Edwin Cameron described it, all for our own good. But apart from those hopelessly captured by ideology or unable to free themselves from the past, when last did anyone think that the Constitution existed for them as "the lodestar of an ongoing constitutional project to achieve a democratic and egalitarian society"?[2]

And the same goes for South Africa's permanent pretenders to power: the EFF and DA. Whereas as the EFF again and again and again equated the easing of lockdown regulations with genocide, the DA was quick to condemn coercive executive law-making when cases were falling only to stipulate its necessity when they began to rise again.[3] But none of this should surprise. The reactive, unimaginative liberalism of the one, and vulgar narcissism of the other, could only ever collapse under the slightest pressure into incoherent, opportunistic exercises of power—these bitter enemies united always by their unmooring from constitutional structure and purpose.

Parliament has fared no better—worse, in fact, given its status as the "engine-house of our democracy".[4] When asked what it was doing in this time of crisis, it without compunction or shame said that for now it would not do anything. Secure in their funded houses and talking from behind their funded laptops, parliamentarians refused to make laws to replace, or at least act to oversee properly, Ramaphosa's war machine. Doing this, we were told, would run too great a risk. Rather than interfere with the Command Council's strategies or tactics, they stood ready to support in whatever way they could. Like good little soldiers they still stand ready—democracy's engine indefinitely stalled.

Given all their pretensions, the media might have been the worst of the lot.

Instead of asking questions, these hacks heralded politicians as heroes, lauding our "wartime" President for his "bravery" in invoking "the powers of his office to ensure the well-being of the people". Rather than interrogating society's militarisation, they "widely welcomed" it, citing it as proof that "government [was] serious about" the virus. Intoxicated by their own rhetoric they failed to consider the facts soberly, instead propagandising about threats to "our entire existence".

They did not just refuse to engage those who suggested that this was not a "tsunami" "that has the potential to completely engulf or destroy us", or who raised concerns about losses resulting from the state's choices or actions, they wrote op-eds and constructed criminal conspiracies shaming them. And instead of treating science as a tool that informs but cannot fix democratic choice or action, they gushed over all our "world-class", "patriotic" and "pre-eminent scientists", presenting the "knowledge and understanding [and] power" of this emerging clergy as our only source of "hope".

Daily Maverick, News24, M&G, and others: they manufactured the conditions for the rise of coercive technocratic rule. "Democracy helps", they said, but what "matters most" is that we follow the science. More fundamentally than any absence of benevolence and concern for human rights, as Justice Cameron suggests, this is the reason why the police and military felt themselves free to abuse, assault and murder those who failed to do their part in flattening the curve.

Listen to the experts, or else.

* * *

Of course, all of this is unconstitutional: a sudden, feverish abandonment of our Constitution's structure and purpose.

The still ongoing abdication of legislative power by Parliament, and its indefinite formal transfer to the Executive through the Disaster Management Act, is not permitted by our Constitution. And to elevate a single concern—bare survival—at the expense of all others, is to enter into and violate the soul of our constitutional order. Anyone who said otherwise 366 days ago would have been subjected to relentless mockery and scorn by all the right and the good—by all our civil society constitutionalists, NGOs and lawyers alike.

But not today. Not for the last 365 days.

From the outset, the following line was embraced by many in civil society who held themselves out as constitutionalists: "Individual rights are important. But life is a paramount individual right. Keeping us alive is the most important function of government."

Whatever you may think about this statement as a moral, ethical or realpolitik position, 366 days ago it would have been uncontroversial to say that it is false as a constitutional one.[5] Government's ultimate job is not merely to keep us safe. Physical and economic security matter a lot, but they have no abstract priority in the order of our state's practical concerns.[6]

Our state's purpose is so much richer, its legal duty extends so much further than a single-minded pursuit of facilitating long life. On pain of constitutional invalidity if it is not, law and policy must be informed by a concern not only for lives and livelihoods, but by what former Chief Justice Pius Langa called the "pageant of diversity" that is envisioned by our Constitution.[7] Not merely keeping us alive, what matters is dignified living: a life filled with love, play, family, friendship, spontaneity, faith, art, education, risk, community, difference, competition, responsibility, expression, criticism, silence, ties to the past, hope for the future, and so on.

When action by the state is not structured in this way—when it fails to strive to respect, protect, promote or fulfil this plurality of goods, knowing always that doing so is necessarily characterised by risk, trade-offs and losses of the most fundamental kind—that action is always a constitutional failure. So much so, Madlanga J tells us, that physical and economic security lose most of their significance.[8]

For 365 days, though, our civil society constitutionalists subordinated, ignored or degraded this plurality of goods. Spectacularly ignorant of the terrors and tragedies that have followed previous setting asides of principle for the sake of efficiency,[9] they believe that an indefinite deferral of democratic processes and transformative duties is justified by an "unprecedented" threat to just one of the goods that matter: bare, biological life.

* * *

Ultimately, this constitutional reversal was made possible by the fact that public life for them has ceased to represent what it did for Chief Justice Langa: a clearing enlivened by beauty and possibility. Rather, constituted by a vulnerable mass that stands in need of their expert and, if necessary, coercive protection, our world together now exists as its opposite: a potential "parade of horribles".[10]

To say this is not to deny or ignore the good that these constitutional lawyers or NGOs have done since this all started. They have advocated social solidarity, economic relief schemes, food aid, educational provision and healthcare funding. They have investigated and reported on public or private corruption, incompetence, power abuse and hypocrisy. And they have gone to court to advance these interests and to pursue these causes, all the while citing the consequential importance of transparency, accountability, openness and judicial review.

But we need constitutionalists, not just charities. We need a civil society that is driven by duty, not just good intentions. We need a public life filled with hope, not just fear.

For our Constitution obliges us to organise our shared life around two basic commitments. The first is to democracy: an insistence that all original legislative power be derived from and exercised by "we the people", both directly and through our chosen representatives in Parliament.[11] The second is to plurality: a courageous but humble and tolerant refusal to let any one concern, good or bad, colonise and dominate all our diverse thoughts and actions.

On both fronts, the constitutionalists have failed us. In the face of a now-not-so novel virus, Parliament has abdicated its legislative power for 365 days. The constitutionalists remained silent. For 365 days, the Executive has exercised power that does not belong to it. But the constitutionalists remained silent. In exercising this illegitimate power, the Executive has for 365 days subordinated, ignored and degraded the purpose for which this power exists: facilitating the plurality of goods that make life worth living. All the while, the constitutionalists remained silent.

When contrasted with their 'about' and 'what we do' pages, when sat next to their grant applications and their blogs, this silence transforms into sound. Listen closely. Tune out the manufactured outrage and all the saccharine calls for solidarity. If you do, you will hear an undignified scream. It is the agony of constitutionalism, suffering a sickness unto death.

* * *

It is a troubling, open question whether constitutionalism can survive our imposed response to the virus. If it does, it may be in name only—with the language of democracy and transformation dragged along by unstructured, arbitrary and unaccountable power as impotent, ignominious ballast.

Just as troubling is the thought that its surviving but humiliated practitioners will be unable to recover their dignity. Lost by some, we can be sure, because they were overwhelmed by the tragedy unleashed or exacerbated by executive whim. But sacrificed by others not because they were a casualty of caprice, but because deep down they never really had a living faith in our constitutional order.

If constitutional life ever does start again, a time will come when we should forgive them their betrayal. For our sake and theirs. But even then, we should not forget that when we needed them most, they kept silent. We must not forget for a simple reason: we are on our own.

Matthew Kruger

Research Fellow

Helen Suzman Foundation

The views of the Research Fellows do not necessarily represent those of the HSF but are published under our auspices in order to enhance and broaden public debate, which is part of the mandate of the HSF.

Footnotes:

[1] Theodor Adorno, Minima Moralia: Reflections from Damaged Life (tr. EFN Jephcott, 2005) 135.

[2]Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others [2020] ZACC 13 para 100.

[3] None of this is altered by their proposal to amend the Disaster Management Act, 2002. In fact, this speaks precisely to their failure to understand the problem. As the Helen Suzman Foundation explains, the problem is not just a lack of oversight but Parliament's abdication of legislative power in response to the virus. By the time it exercises its oversight power the horse has already bolted. A truly democratic party would understand this simple point.

[4]Matatiele Municipality and Others v President of the Republic of South Africa and Others (1) [2006] ZACC 2 para 109

[5] Those who do defend the alternative view like to cite S v Makwanyane and Another [1995] ZACC 3. But there Chaskalson P said that "life and dignity are the most important of all human rights " (para 144) What matters is not merely being alive but dignified living, and a life of dignity is one filled with meaning.

[6] It is only by considering without prejudgment all conflicting rights and interests that the limitations analysis in section 36 of the Constitution can be applied. What is impermissible is elevating one consideration above all the others prior to this analysis, which is what has been happening since the beginning.

[7]MEC for Education: Kwazulu-Natal and Others v Pillay [2007] ZACC 21 para 107.

[8]Daniels v Scribante and Another [2017] ZACC 13 para 2.

[9] This claim to efficiency is actually constitutionally incoherent. For efficiency presumes a determined destination, which we can be better or worse at making our way towards. But fixing this destination is the point of politics. Before 'we the people' democratically determine 'what is to be done', all talk of efficiency is code for the exertion of illegitimate power.

[10]Pillay ibid para 107.

[11]Doctors for Life International v Speaker of the National Assembly and Others [2006] ZACC 11 para 116.