South Africa, Politics

SA Constitution, 20 Years On: A weapon of war and a political football

By Ranjeni Munusamy 9 May 2016

Ever since South Africa’s Number One citizen was found to have acted “inconsistently” with the Constitution, it has featured prominently in political banter and in election campaign speeches. Sunday marked the 20th anniversary of the adoption of the Constitution and the Thabo Mbeki Foundation hosted an event to commemorate the former president’s poignant “I am an African” speech. Mbeki had some advice for the current leadership and also suggested that South Africans needed to know their Constitution better to deal with the country’s crisis. By RANJENI MUNUSAMY.

One of the most exceptional moments in South Africa’s history was the adoption of the South African Constitution on 8 May 1996, the occasion on which then Deputy President Thabo Mbeki delivered his iconic “I am an African” speech. It was therefore fitting that his foundation chose to mark the 20th anniversary of the adoption of the Constitution with a panel discussion at Freedom Park in Pretoria, attended by a number of political party representatives, prominent South Africans and schoolchildren.

It was perhaps serendipitous that Mbeki had the opportunity to talk about constitutionalism at a time when there are great concerns in society about the Constitution being under attack by the ANC government. Perhaps it was not serendipitous, but intentional. Also on the panel was retired Constitutional Court judge Zak Yacoob who is one of the leaders of a civil society initiative calling for President Jacob Zuma to step down.

Watch: I am an African

This is no ordinary anniversary of the adoption of the Constitution. Two decades is a milestone but it also comes at a time when the Constitutional Court ruled that the president “failed to uphold, defend and respect the Constitution as the supreme law of the land”. The court found that Zuma’s conduct regarding his handling of the public protector’s report on Nkandla was illegal and inconsistent with his constitutional obligations. The court also ruled that the National Assembly flouted its obligations and acted unlawfully and inconsistently with the Constitution.

This situation is unprecedented and there has not been an adequate remedy for both the president and the National Assembly violating the Constitution. However, the Constitution is now a political football, featuring prominently in election campaign speeches, with all parties claiming to be its upholders.

Speaking at the launch of the ANC manifesto in Nelson Mandela Bay last month, Zuma said a vote for the ANC was a vote for the Constitution. “The ANC is guided by the Constitution of the Republic in all the work it does to improve the quality of life of the people. A vote for the ANC is a vote for a united, nonracial, democratic, nonsexist and prosperous South Africa. It is a vote for the Constitution of the Republic,” Zuma said.

The Constitution also featured in Democratic Alliance (DA) leader Mmusi Maimane’s manifesto speech in Johannesburg recently.

We have a Constitution that guarantees that every person be treated with dignity and equality… We must treasure this Constitution. It is the rock on which we must build our free and fair society. If we protect it, it will protect us,” Maimane said.

In almost every speech in Parliament and on the campaign trail, Maimane reminds people about the president’s conduct and demands action against him. In a DA march to the Constitutional Court, IOL quoted Maimane as saying:

Jacob Zuma is not a constitutionalist. He doesn’t believe in the rule of law – he believes in the rule of man. The rule of law tells us that no one is above the law; but Jacob Zuma is a thief, and we know him.”

In a statement on Sunday marking the anniversary, Maimane said the Constitution was under attack. “Jacob Zuma and his government have violated our Constitution at every turn. From the president himself, to Parliament, to the ministers of Police and Public Works, our Constitution has been treated like it’s an optional inconvenience.

It is when our Constitution is undermined that the very basis of our democracy is undermined, and placed in jeopardy,” Maimane said.

Economic Freedom Fighters leader Julius Malema said after the Constitutional Court judgment that the only way the Constitution could be respected was if Zuma was removed from office. And on the campaign trail in Midrand last month, Malema said that without adherence to the Constitution, South Africa would become a failed state.

The day we don’t have a Constitution, that is the day soldiers will get into Ebony Park and rape our women, then when we try to complain we are told they are untouchable. Police will be untouchable. The Zumas will be untouchable. We will be another failed state.

Without a Constitution, the family of the president will be richer than the whole country. Where, when civil servants must be paid and government doesn’t have money, the president borrows government money. Our economy is going down because the Constitution is under threat,” Malema was quoted as saying by News24.

Civil society and religious organisations started a mobilisation campaign against Zuma in defence of the Constitution. The initiative has not attracted mass support.

Speaking at the event marking the anniversary of the Constitution on Sunday, Mbeki said large parts of society remained unfamiliar with the founding document, to their detriment. He said there would be greater societal intervention if more people understood what the document entailed.

A lot of our people are not familiar with what this Constitution says. The consequence is that we sit in government and do something that is wrong and even unconstitutional. Mmusi [Maimane] will say it is incorrect and so will the judges. But where is the rest of society?” Mbeki asked.

Mbeki repeated a call he made a few weeks ago for a national dialogue to assess and discuss the state of the nation. This is in line with an initiative by the foundations of struggle stalwarts, including Oliver and Adelaide Tambo, Nelson Mandela, Robert Sobukwe and Desmond Tutu, to lead a series of public talks about where the nation is headed.

Mbeki said people all over were discussing the future of the country as there were widespread concerns about issues such as governance, morality and social cohesion. In response to a question about what he would say to the country’s leaders, Mbeki said he would encourage them to support a national engagement. “Let’s have this national dialogue. The people must speak.” He said while politicians spoke often about the state of the country, “What about us who are not leaders, when is our voice going to be heard?”

The former president said there was a lot of “restlessness” in society, which he said the current leadership should try to understand. He referred to comments by ANC national executive committee member Bheki Cele lashing out at his party for not being able to fill a hall with supporters in Nelson Mandela Bay. Cele told a party meeting that the ANC should stop lying to itself and acknowledge that the situation was bad.

Mbeki said when he read Cele’s comments, he gave him a “standing ovation” for admitting to the problems and calling on the ANC to stop deceiving itself. He said it was time the leadership acknowledged the signs of disaffection on the ground.

Commenting on the situation in Vuwani, Limpopo, where 24 schools have been burnt in a demarcation dispute, Mbeki said this signalled a “collapse of order” and a “state of anarchy in society”. “There is something going wrong with this society that produces this kind of thing,” he said.

Mbeki said the Constitution was a product of its time and there was “no better product in the world”. The situation has changed since then and discussion was needed about what in the Constitution was blocking change, he said.

Asked by a high school pupil how he would adapt his “I am an African” speech if he had to deliver it now, Mbeki said he would not change it because all that he said was still relevant. “I would still say whatever our problems today, tomorrow will be better.”

The 20th anniversary of the Constitution passed without much fanfare, apart from the Mbeki foundation event. The document that came as a result of two years of public participation, intense negotiations and significant head butting between political parties remains the foundation on which our democracy rests. But it is a cause for concern that there has been no recourse for it being violated by two arms of the state.

In that iconic speech delivered 20 years ago in Parliament, with then President Nelson Mandela looking on in admiration, Mbeki said:

The Constitution whose adoption we celebrate constitutes an unequivocal statement that we refuse to accept that our Africanness shall be defined by our race, colour, gender of historical origins… It provides the opportunity to enable each one and all to state their views, promote them, strive for their implementation in the process of governance without fear that a contrary view will be met with repression. It creates a law-governed society which shall be inimical to arbitrary rule.”

Twenty years on, that document cannot and should not be reduced to a tool for politicking as the rule of law fragments. It must continue to uphold “a law-governed society which shall be inimical to arbitrary rule”.

Mbeki, as always the master of the subtext, suggested that more people needed to understand the Constitution for greater societal intervention to protect it. He meant that a better understanding of its contents and significance will ensure that violations, particularly by those in power, are not so easily shrugged off and that society will stand up to protect our democracy.

Many people do not realise that is not up to political parties to defend the Constitution – they will do so only for as long as it serves their political interests. The Constitution should not a weapon of mass mobilisation for political parties. It is our guiding light and the cornerstone of our democracy. It is our business to defend it.

In time to come, it could be all that stands between us and a total collapse of order. DM

Photo: Nelson Mandela (L) walks through the ‘Izipho: Madiba’s Gifts’ exhibition with Nelson Mandela Foundation Chairperson Cyril Ramaphosa (R) at the Foundation’s headquarters Mandela House in Johannesburg, South Africa, Thursday 14 July 2005. EPA/JON HRUSA


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