South Africa


Solid even when under fire, SA Constitution is here to stay

Solid even when under fire, SA Constitution is here to stay
Thabo Mbeki, President Nelson Mandela and FW De Klerk on the day South Africa’s Constitution was adopted, May 1996. (Photo: Gallo Images / Oryx Media Archive / Benny Gool)

While calls for change to our politics have become a constant in our national conversation, there are many people who want to alter the entire system. There are now regular calls for South Africa to ‘change our Constitution’. This appears to be a cry for help, based on the lived experiences of people who are suffering in our current situation. But, while many may believe there should be some change, real change to our Constitution is actually becoming less likely, despite the heat around it.

One of the staple subjects of English-language talk radio in our country is people who phone in to suggest the Constitution should be changed.

Perhaps most often it is about the rights the Constitution gives to people accused of criminality, and the fact that it can be so difficult to get a conviction.

For some, this takes the form of moments when someone like Matshela Koko is able to walk free from court. But for others, it is literally the difference between life and death. They see the law, and thus the Constitution, as responsible for the fact they cannot deal with criminals in their communities.

Perhaps the most spectacular symptom of this is the fact that someone like Xolani Khumalo is able to make money out of torturing alleged drug dealers on his former television show Sizokhutola.

But there are also other demands to change the Constitution, particularly around foreign nationals. This is because of the perception, backed up by what people see in their communities, of some people from other countries having incomes while they do not. 

Again, it is the Constitution which is blamed.

Also, from time to time, high-profile figures claim that the Constitution needs to be changed.

In recent years the most contentious issue has been about land expropriation without compensation. This saw the ANC technically agreeing to change the Constitution at its 2017 Conference.

That led to huge reverberations.

However, the Constitution also has millions of supporters, and even those who want it to be changed may support almost all of the rest of its clauses.

This is because many people, probably a majority, are strongly aware of what the Constitution gives us.

In the years after it was adopted, so many copies of the little booklet were published, that most people have a copy (one can still see advocates thumbing through it in court).

But more important than that, people are aware that it is the Constitution which gives them the right to life, to remain silent, the right to information, the right to organise and protest, and so much more.

In short, for many people, the Constitution is the document that gives them the right to be fully human.

However, as many have argued, the Constitution may give people many rights, but it does not enforce enough obligations. This has led to criticism that in fact we also need a “bill of responsibilities”.

At the same time, it is obvious that many of the problems that millions of people face in their daily lives are not the fault of the Constitution. They are really the fault of the choices made by those in government.

It is not the fault of the Constitution that the ANC government has decided to cut the budget for the NPA, while increasing the budget of the VIP Protection Unit (NPA Head Shamila Batohi described the fact the VIP Protection Unit gets 74% of the budget of the NPA as “revolting” in an interview with the Sunday Times this last weekend).

It is also not the fault of the Constitution that State Capture happened. Or that the ANC elected and defended Jacob Zuma as President despite evidence that he was involved in corruption.

That said, these complaints about the Constitution, about something so fundamental to our lives, about something that allows us to live lives as full human beings, are vitally important.

They are really a complaint about our lived reality. They are also a warning to government, and those in positions of power in the current system. They are a symptom of the anger felt by so many, directed at our current reality.

Unfortunately, it is likely that calls for the Constitution to be changed will only grow, as levels of frustration and discontent will rise.

This is also because several political leaders will try to harness this frustration for their own ends.

They will seek to promise to change the Constitution.

Also, as our politics continues to fracture, it is likely that more and more people will make this promise, they will claim that changing the Constitution is the answer to our problems.

It could be that many political parties will now treat the Constitution almost as a stalking horse. It will be a document they can use to blame for our current problems, while speaking to different constituencies. And, crucially, it will allow them to avoid responsibility for their own shortcomings or lack of action.

But this also means there will be less and less consistency to these promises, people will make all sorts of contradictory promises.

As a result, despite all of the heat around the issue of changing the Constitution, it is in fact less likely to be changed.

At the moment, the ANC in conjunction with either the DA or the EFF would have the power to change the Constitution (changing the Constitution requires a two-thirds majority in Parliament). And for the moment, there seems very little prospect of that happening.

While the ANC and the EFF both claimed to want to change the Constitution to allow the expropriation of land without compensation, even they could not agree on what would happen to that land afterwards.

And if they cannot agree on this issue now, it seems less likely that they, or any other combination of parties could agree on any changes after the election. It is likely that next year the National Assembly will have more parties with smaller shares of the vote, making any change much more difficult.

This means that the Constitution, in its current form, may well be unchanged for many years to come, unless there is some kind of political earthquake. The document as it is currently printed in its little booklet will likely remain the same as it is now. Which also means the protections and rights it confers, and the obligations it places on government may remain in place for many years to come.

And government is likely to continue to fail to fulfill those obligations. Leading to more anger, and more frustration. And more calls for the Constitution to be changed. DM


Comments - Please in order to comment.

  • Con Tester says:

    The overwhelming majority of polypticians the world over, regardless of party affiliation, are by their very nature unprincipled and conscience-bereft opportunists who will say literally *anything* to retain power, even if it flatly contradicts what they said yesterday. And that is the fundamental flaw in democracy: the people are represented by agents whose self-interest will almost inevitably sooner or later trump their duties and promises to the people they are supposed to represent. The Constitution is not at fault for being agnostic about the sleazy nature of polypticians.

  • ROB Bernard says:

    While SA’s constitution may be a strong document meant to ensure the security, rights and fairness to all citizens, what good is it if it is not applied. That is the situation in SA, while the constitution is a strong set of guidelines, the clowns in parliament continually attempt to, and often succeed in, passing laws that contradict our constitution. Also, our lower courts (magistrate) continually trample over peoples right in their rulings. Kids brought into open court to testify, crony magistrates consorting with one or other party for a favourable outcome, refusing to try a shooter because his girlfriend is a crony of the magistrate court in a particular region and an arrangement was made to protect him, the list goes on. The press is full of magistrate decisions that are contrary to justice but, and here is the kicker, the magistrates commission is a weak body previously managed by whites and now seemingly taken over by non-whites. It was common knowledge that court decisions depend on what gender or race the magistrate is (the friction between various Law Society’s and the Black Lawyers Association has been reported in the media) and then if a “good relationship” exists between attorneys/advocates and a magistrate. Justice for ordinary people is unobtainable and out of reach unless you have deep pockets of prepared to cross the line to make good relationships. Given the above, the constitution is a worthless document to ordinary people.

  • batting 101 Captain says:

    the constitution is a piece of paper, means nothing to the poor. Has no power to put food in their mouths. Does not protect any citizen ,all but lip service. The list is endless.

    • Cunningham Ngcukana says:

      I think you need to be educated on the functions of the Constitution just like Cyril Ramaphosa. A constitution cannot build roads, bridges and schools because that is not the function of this crowning achievement of human civilisation. Its functions is to define the rights of citizens and to define the functions of the three branches of government and to impose limits on the government. It provides for duties and obligations. But if you expect it to arrest the corrupt you have a very wrong notion of the Constitution or put food on the table. You have a long way to go because for the Komape family despite being poor it has a meaning for them and those whom the courts have compelled the government to fix their schools in poor
      communities. It may not protect the citizens but can be used to compel the government to discharge its duties like the protection of commuters in the Intercape buses from thugs. Ask Mbalula about this before exposing your ignorance.

  • Cunningham Ngcukana says:

    The failure by successive ANC governments to deal with the economic challenges of the country is at the centre of the questioning of the Constitution. Instead the ANC has now invented a recitation of unemployment, poverty and inequality instead of admitting their patent failure in dealing with these triple challenges that have become their recitation. To divert attention from their own failures, the ANC and its governments since Zuma has turned to the Constitution as the reason for their own failures. This includes Ramaphosa who was the ANC chief negotiator with Zuma on his side of the Constitution. This issue of the Constitution is not limited to the ANC but all political parties who fail to say how a change in the Constitution would actually bring changes to challenges faced by the previously disadvantaged groups. This debate goes into public spaces and various political groups who point to the lack of transformation and the entrenched clauses are put as responsible as well as the failure of Codesa to deal with economic ownership patterns except the extractive BEE that has benefitted a few individuals. Some have mulled an economic Codesa.
    However, the question of addressing the economy, in particular economic growth and unemployment will remain the urgent issue even if the Constitution were to change. The social issues of crime, immigration, xenophobia and homophobia are linked to the economic conditions that the ANC governments have failed and is failing to address.

  • Glyn M says:

    The main thing that will bring change is not altering the Constitution. Just vote the ANC out and see governance and the country improve exponentially.

  • jacki watts says:

    The ANC has to go. When “spineless” suggests we ought to be like China, there is the surest sign our constitution means nothing to him or the ANC

  • George 007 says:

    So, in other words, in addition to Jan van Riebeeck, colonialism, apartheid, and white people, the ANC is blaming the constitution for the mess they have created.

  • John Stephens says:

    Let’s not throw out the baby with the bathwater. Our constitution is a great document in many ways. The criticisms of it that are discussed in the article are without foundation. The problem is that it is found wanting in the respect of governance.
    The representation of the people in the constitution is an abuse of the basic principles of democracy. The people are not represented, and therefore the elected governing bodies are not representative of, nor answerable to the people who cast their votes. Political representatives, represent their parties, not the people that elected them. Political parties themselves are not directly responsible to the people. They are oligarchies, beholden to special interests. Their remit is to gain public support by any means possible and then to govern in the interests of those special interests. That is not democracy.
    The constitution needs to change to make the governance structure of South Africa more democratic. To serve the electorate and nobody else.

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