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Calls to throw the constitutional baby out with the political bathwater are misguided and dangerous

By Paul Hoffman Follow 28 Mar 2022

Paul Hoffman SC is a director of Accountability Now.

Criticisms of the failures in governance in SA since 1994 are well-founded. They are however not to be laid at the door of the Constitution. It is the baby. The dirty bathwater includes our politicians, our public servants and those who wield power in the state-owned enterprises.

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Minister Lindiwe Sisulu regards the Constitution and the rule of law as strange foreign concepts that have no place in SA; Premier Sihle Zikalala, the 8th premier of KZN, would prefer parliamentary sovereignty to constitutional democracy; and more recently Prof Eddy Maloka of the Wits School of Governance suggests that SA must establish a “Second Republic” with a new constitutional order.

It is an inconvenient fact that both Sisulu and Zikalala have solemnly sworn oaths of office in which they pledge their fealty to the Constitution. Their newly announced ideas, even if they are no more than jockeying for position in the factional politics of the ANC, preclude them from continuing in office as they both clearly no longer regard themselves as bound to “obey, respect and uphold the Constitution and all other law” truly and faithfully. No moves have been made to discipline them.

The president was sent packing when he sought an apology and retraction from Sisulu and the National Prosecuting Authority is dragging its feet on criminally prosecuting Sisulu for contempt of court and/or scandalising the courts. Zikalala is arguably also guilty of the latter offence.

All three champions of change do not seem to appreciate that the Constitution is a home-grown result of an exhaustive consultation process over several years in which two million SA citizens directly participated. It carries the support of the vast majority in the country as a product of the National Accord which preceded its adoption as our supreme law.

While the Constitution may accurately be labelled a compromise between the forces of African nationalism and Afrikaner nationalism, a compromise is nevertheless binding and ought to be treated as such. Like “buyer’s remorse”, the second thoughts of those who compromised to create the new order are not a legal leg on which to stand.

The Constitution has been amended 17 times in its short history, having come into operation in February 1997. It will be amended again and again. Its architecture is open to amendments, provided the prescribed majorities can be attained by those seeking amendments of different kinds.

For example, if Sisulu is to get her wish that the rule of law be abandoned in SA, she will have to find a majority of 75% in Parliament as the rule of law is regarded as supreme in Chapter One of the Constitution and is protected against being amended or discarded. This feature was a central part of the compromise thrashed out in the Codesa process.

The Constitution is not a perfect document. All constitutions are living documents and ought to be adjusted from time to time to meet the exigencies of governing in a manner that is responsive to people’s needs, accountable and open.

It is arguable that too much power is concentrated in the presidency in SA at present. The Constitution also does not pay sufficient attention to the need to have effective and efficient anti-corruption machinery of state. The law requires a unit that is adequately independent and capable of protecting human rights and complying with the international treaty obligations of SA.

The courts have also ordered that the electoral system at parliamentary and provincial levels be amended to accommodate independent candidates — this process will involve amending the Constitution in a manner that is not inconsistent with the existing provisions around equality, free and fair elections, political rights and proportional representation, inter alia.

Prof Maloka seems careless of the limitations on amending or replacing the constitutional order in SA. A new constitutional order will, absent a parliamentary majority of over 75%, remain a figment of his creative imagination. There is no cigar for resorting instead to a referendum.

His criticisms of the failures in governance in SA since 1994 are nevertheless well-founded.

They are however not to be laid at the door of the Constitution. It is the baby. The dirty bathwater includes our politicians, our public servants and those who wield power in the state-owned enterprises (SOEs). Blaming the Constitution for their failures in service delivery and governance is entirely misplaced.

Indeed, the Constitution is often ignored or disregarded in the decision-making processes that inform governance by deployed cadres of the National Democratic Revolution (NDR). This leads to the adoption of laws and policies that are inconsistent with the Constitution. They are then struck down by the courts, which are obliged to uphold the law and the Constitution, not the NDR. Most of the ills of SA today can be attributed to the attempts by the comradely cadres to smash the square peg of NDR thinking into the round holes provided by the Constitution.

Section 195 of the Constitution sets out in some detail the basic values and principles governing public administration. The principles and values are routinely honoured in the breach by the deployed cadres of the NDR who seek instead to impose their hegemonic control of all the levers of power in society on SA. This striving is towards the one-party state so beloved of Lenin, whose thinking informs the NDR.

While Maloka is quick to distance his suggestion from the NDR, he does not attempt to analyse its destructive effect on governance in SA since 1994. It is doubtful that any deployed cadre of the NDR would be prepared to sign (without crossed fingers) the pledge for the public administration prepared years ago by Accountability Now.

Any constitution anywhere in the world is only as good as the people who are elected and appointed to make it work, to implement its values and to honour its tenets. If the majority of those running a country is beholden to the tenets of the NDR which is entirely inconsistent with the values of the constitutional order in place, it can be expected that there will be maladministration, malfeasance, kleptocracy, State Capture and serious corruption. That is precisely what has happened in SA over recent years.

Those loyal to the NDR think nothing of using public funds for private party-political purposes. The illegal “commissions” on the arms deals paid for the ANC’s 1999 election campaign. The Hitachi Power Africa Deal brought in billions for the ANC’s investment arm, Chancellor House. This windfall was before the deal was abandoned after Hitachi was fined heavily in the US for entering into so corrupt a contract, ostensibly to provide boilers to Eskom, but actually to swell the coffers of the ANC.

During the Zuma era, the brothers Gupta and Watson between them saw to it that the ANC election machinery was well-oiled with public money purloined in crooked procurements of goods and services for the state and SOEs.

The upshot of these high jinks is that no fair election has been held in SA since the first election of the new era in 1994. No other political party active in SA has access to public funds other than those comparatively small amounts voted transparently by Parliament. They cannot compete fairly with an ANC election machine that is financed with illegally obtained funding. Without a level playing field for all political parties it is impossible to organise and run a fair election.

The IEC remains impervious to complaints around the fairness of elections, leaving it to Parliament to address the situation. The criminal justice administration is at least 10 years behind in its work due to being captured and willing to do the bidding of the ANC rather than to prosecute criminals without fear, favour or prejudice.

There would be no need for a “Second Republic” as envisaged by Prof Maloka had the public administration and the majority of politicians made an honest attempt to implement the principles and values of the Constitution. The duty of the state to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights has been serially neglected by successive administrations which have preferred instead to pursue the values of the NDR. It is not necessary to repeat in detail that the NDR is deeply and darkly inconsistent with constitutional values.

It may well be that those who are apprehensive about the final recommendations of the State Capture Commission, those who fear incarceration for their role in State Capture and those who seek voting fodder in the ranks of the kleptocrats and their fellow travellers, will try to make a scapegoat of the Constitution. The baby that is our beautiful constitutional order ought not to be thrown out with the dirty bathwater that conceals State Capturers, both in business and in politics, from accountability.

South Africans need to be eternally vigilant if our hard-won freedom is to endure and mature into peace that is secure, progress that is sustainable and prosperity that is shared. We need to vote in better politicians. We do not need a new constitution, a (heaven forbid) parliamentary sovereignty or a “Second Republic”.

We do need the rule of law, now more than ever. DM

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