The ANC’s commitment to constitutionalism is questionable and will be severely tested in the months ahead

by | Jan 25, 2022 | General | 0 comments

By Paul Hoffman 24 Jan 2022

Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.

Lindiwe Sisulu has thrown down the gauntlet to those in the ANC who support the Constitution as well as to those who pay lip service to its values. If the RET faction she seeks to lead prevails in December, expect to see a full-frontal attack on constitutionalism from its members.

Prior to 1994, SA was a parliamentary sovereignty in which the “white” and (later) tricameral parliaments reigned supreme. The system accommodated many abuses of human rights, not the least of which was the apartheid policy of the National Party that held a majority in that sovereign Parliament from 1948 to 1994.

When the democratic dispensation now in place was negotiated over a period of seven years, spanning the unbanning of liberation movements in February 1990 to the coming into operation of the final Constitution in February 1997, the negotiating parties wisely turned their backs on the parliamentary sovereignty model. In its place, we now have a supreme Constitution under the rule of law.

Conduct and laws that are inconsistent with the Constitution are invalid. They are regularly struck down by our independent courts whose mandate it is to apply the Constitution and the law impartially and without fear, favour or prejudice. The rule of law frowns on arbitrary, capricious, illegal, irrational and unconstitutional conduct.

The courts have incurred the ire of many ANC politicians and functionaries over the years. Judges have been cursed as “counter-revolutionaries” by no less a person than the Chairperson of the ANC, Gwede Mantashe. The recent bile spillage issuing from the Minister of Tourism, Lindiwe Sisulu, brings into sharp focus the lack of commitment to the constitutional order of elements in the ANC, largely those in the RET faction that favours radical economic transformation and a tame judiciary that will turn a blind eye to the excesses of State Capture, kleptocracy and serious corruption on the part of ANC cadres.

Indeed, the RET faction sees nothing wrong with State Capture pointing out that the express policy of the ANC is to secure “hegemonic control of all the levers of power in society”. This grouping derisively writes off the Constitution as a mere palliative, the Panado (or, if you prefer, the Panadol) of the masses who continue to suffer the indignities of gross inequality, unemployment, poverty and hunger despite what the new order promises. Sisulu is now openly questioning the utility of the Constitution despite having sworn, in her capacity as a member of the national Cabinet, to “obey, respect and uphold the Constitution and all other law”.

The Cosatu leadership has suggested that she leave the tripartite alliance because of her lack of commitment to constitutionalism.

The Constitution is not a magic wand. It can be likened to the blueprint for a new building. If the building is not built by those with their hands on the levers of power, it remains a blueprint and is not established as the home of the people who admire its values and precepts, its tenets and promises.

Chief among the promises is our much-vaunted Bill of Rights. The state, it says, “must respect, protect, promote and fulfil the rights in the Bill of Rights”. A failure to do so invites litigation to assert the rights guaranteed to all. The Treatment Action Campaign (healthcare), Irene Grootboom (housing), the Rail Commuters Action Group (freedom and security of the person) Hugh Glenister (effective and efficient anti-corruption machinery of state) and Alex Carmichele (dignity) have all successfully asserted various of the human rights included in Chapter Two of the Constitution. They needed to do so because those in government were in breach of their human rights obligations under the Bill of Rights.

When civil society organisations accuse Sisulu of “blame-shifting” in her attack on the rule of law, the Constitution and some judges (whom she identifies as lickspittles and house negroes) they are highlighting the inescapable fact that it is the lack of commitment to realising human rights on the part of successive ANC administrations that is the cause of the lot of the poor, the unemployed and the less than equal. It is not the fault of the Constitution which posits a better life for all.

Sisulu has thrown down the gauntlet to those in the ANC who support the Constitution as well as to those who pay lip service to its values. If the RET faction she seeks to lead prevails in December, expect to see a full-frontal attack on constitutionalism from its members.

Those in (or supportive of) the ANC who oppose the heresy proposed by Sisulu fall into two groups: the group that believes in the supremacy of the Constitution, respects the primacy of the rule of law and has turned its back on the national democratic revolution. Cosatu, the NGO sector and some ANC-aligned academics populate this group. Then there are those who continue to pay lip service to the Constitution while awaiting the stage when what they call the “balance of forces” is such that the “beachhead” to power that the Constitution gave the ANC can be consolidated, “with “dexterity in tact” into the implementation of the revolutionary striving for comprehensive control of all levers of power in society, including the judiciary and the media.

The $64,000 question is which of these two anti-Sisulu groupings does the head of state and the leader of the ANC fall? Is Cyril Ramaphosa truly admonishing Sisulu’s deviance or is he still busy with his “frog-boiling” exercise as suggested by David Bullard and other observers? Is he genuinely a constitutionalist?

It seems he would like to be both.

The role of the NDR in the workings of the ANC has been explained by Ramaphosa. He seeks to synthesise the revolution with constitutionalism. This task is “mission impossible” as can be seen from his own words on the topic shortly after he ascended to the deputy presidency of the ANC and took up the chairpersonship of its national cadre deployment committee at Luthuli House. The exact workings of that committee, its role in populating the judiciary and the (supposedly) independent Chapter Nine Institutions as well as our SOEs remain obscure and will no doubt feature in the report of the State Capture Commission.

Here are Ramaphosa’s own explanations in relation to pushing the square peg of the NDR into the round hole of the Constitution:

“The equality clause is in fact fundamental to the transformation agenda and is not contradictory to the National Democratic Revolution. Not only does it provide the basis for the ANC’s transformation agenda, but it also establishes transformation as a Constitutional imperative. For those who genuinely wish to see a truly transformed South Africa that is dealing with the legacy of apartheid, there is no approach other than set out in the equality clause of our Constitution

“The clause says, among other things, that equality includes the full and equal enjoyment of all rights and freedoms. It further says that to promote the achievement of equality, measures may be taken to advance people who have been disadvantaged by unfair discrimination.

“Simply put, the Constitution says the achievement of equality may require steps to redress the injustices of the past.”

In fact, the revolutionary striving for what the ANC calls “demographic representivity” is deeply at odds with non-racialism as it is understood worldwide. The non-racialism of Martin Luther King Jnr, among others, is achieved when content of character and not colour of skin is how people are judged. The revolutionary bean-counters are hard at work trying to achieve “demographic representivity”, all the while perpetuating the false divisions of the past and creating a reverse form of racism that is completely unconstitutional.

Cadre deployment to secure hegemonic control of all levers of power in society, (not just government, mark you) is deeply and darkly unconstitutional. The ways in which cadre deployment creates inherent conflicts of interest and undermines the processes of human resource management in the state are seriously unconstitutional. In fact, the way in which the NDR has been implemented by the ANC flies in the face of constitutionalism and leads to the losing litigation of the kind mentioned above.

The unconstitutionality of the various activities of the NDR has already been analysed in some detail here.

The high jinks of the unrepentant Sisulu could, indeed should, lead to her facing criminal charges for scandalising the courts and/or for contempt of court.

If Ramaphosa does not dismiss her from his cabinet he reveals his lack of commitment to constitutionalism and his willingness to maintain faux unity in the ANC by accepting her repudiation of her oath of office and by accommodating her desire for a new order that is, by her lights, less “palliative”. Ramaphosa was, when he was nominated for the presidency in the National Assembly, introduced by his proposer as a true revolutionary.

His commitment to the revolution is being tested by Sisulu. He too has sworn to uphold the Constitution. DM

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