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The devil will be in the detail of a constitutional amendment


Judith February is executive officer: Freedom Under Law.

One wonders who will be drafting the proposed amendment to section 25 of the Constitution. Is someone, somewhere in Luthuli House, doing so and passing along notes?

At least it wasn’t a Cabinet reshuffle. We have become quite used to those late-night, last-minute announcements during the Zuma presidency.

The “new dawn” would be different, we were told. But while many are still willing to give President Cyril Ramaphosa the benefit of the doubt, his announcement on land and economic matters after the ANC lekgotla ended on Tuesday raised more than a few eyebrows. It probably raised a few eyebrows because of its timing and the way in which it was done. Ramaphosa appeared on the SABC, the public broadcaster, to make the announcement.

This was a grave mistake. Presidents in constitutional democracies should not be taking up a slice of the television pie to make announcements regarding their internal party matters. Granted, the ANC is not any party, and what it says and does matters. But the SABC is not a state broadcaster to be silenced when the ANC “master” wishes to speak.

Ramaphosa ought to have done what most leaders of democracies do if they want something heard – call a press conference. That would have indicated that the ANC in fact is – and sees itself – in the same category as every other political party in the country and not elevated or apart from it. The new leadership at the SABC should have had the spine to draw some sort of line in the sand. Why suspend scheduled programming at the drop of a hat?

So, the announcement started on the wrong note. Ramaphosa seemed to be in a hurry to get out ahead of his not-so-trusty colleagues at Luthuli House to set out the parameters of the issue.

The entire land “debate” has seemed like it has caught Ramaphosa on the wrong foot. It has had a disruptive interlocutor in the form of the EFF and the ANC has been playing catch-up to the EFF’s pre-election populism ever since.

One cannot be sure that Ramaphosa even supported the Nasrec resolution that included the space for expropriation without compensation. Certainly, when Enoch Godongwana, head of the ANC’s Economic Transformation sub-committee, made the announcement at Nasrec, he seemed a reluctant messenger.

Godongwana labelled it a “contentious issue” and said that the resolution had a condition: that it be enforced sustainably.

The final conclusion that we agreed, the national executive committee will initiate some amendments in [sic] the Constitution’s section 25 to achieve expropriation without compensation. For that to happen it must be sustainable. This means it must not impact on agricultural production, food security and other sectors of the economy.”

He said that even those who want land expropriation without compensation agreed that it should be achieved sustainably.

So, it was clear back in December 2017 that the ANC was keen to explore expropriation without compensation.

When the ANC held its land summit in Boksburg in May 2018 it reaffirmed this in its post-summit statement when it said:

The workshop proposed that the ANC proceed to affirm the amendment of Section 25 (2) (b) to immediately effect the principle of expropriation without compensation for public purpose and interest.”

So, while we can be surprised by the nature and timing of Ramaphosa’s announcement late on Tuesday, we should not really be surprised that the ANC is backing the amendment of section 25 of the Constitution. The point has always been, as Ramaphosa admitted in his announcement, that many within our society believe that an amendment process is in fact an unnecessary rabbit-hole to go down.

What in the Constitution currently prohibits orderly and just land reform? Ramaphosa as a lawyer would understand the arguments made in this regard. In reality the state has been the biggest obstacle to land reform because of its corruption and ineptitude. This is on record in many pieces of research, not least of which is the High Level Panel on the Assessment of Key legislation report which deals in detail with the land issue.

But would that Ramaphosa’s life was as simple as making convincing legal arguments based on logic ahead of what will be a highly contested national election in 2019.

With the slimmest of majorities he won at Nasrec and the balancing act within his own party was fully on display during the announcement on Tuesday night. Ramaphosa knows that picking a fight with his secretary-general Ace Magashule and others like him in the party will not make for good electoral politics.

For Ramaphosa to shore up his powers he will need a convincing electoral victory in 2019, after all. Part and parcel of the divided party he inherited is that he is in certain ways hamstrung by the rather more populist part of his party.

The problem of course is now twofold: first, Ramaphosa has pre-empted the ongoing parliamentary process because surely now ANC MPs on the committee taking submissions on the issue will have made up their minds on the outcome? There was never a thing such as an independent-minded MP, especially not ahead of an election. The “review process” called for by the parliamentary resolution is meant to explore options.

Yet now that seems moot because which ANC MP on that committee will be persuaded to work against the party line and say that the Constitution need not be amended? De facto for the ANC MPs, the nature of the resolution taken by Parliament on the land issue has changed – it will now become a question of “how to change s25” and not whether to change it.

Two constitutional court judgments spring to mind on public participation: Doctors for Life Incorporated v Speaker of the NA and the Matatiele Municipality v President of Republic of SA cases. In these cases the ConCourt was clear that public participation in parliamentary processes had to be “meaningful” and citizens had to be provided with a “reasonable opportunity” to have their views heard. Parliament of course has the discretion to decide how this public participation process takes place.

So one wonders whether somewhere the opposition Democratic Alliance is rustling up court papers to challenge the parliamentary hearings given the Matatiele and Doctors for Life cases? If so it will represent a terrible misstep by Ramaphosa on such a basic constitutional issue – the question of public participation.

In addition, if a constitutional amendment is introduced, what happens to the work of the review committee? It has now become procedurally fraught despite what committee chair Vincent Smith says.

Accordingly,” Ramaphosa went on to say, “the ANC will, through the parliamentary process, finalise a proposed amendment to the Constitution that outlines more clearly the conditions under which expropriation of land without compensation can be effected.

The intention of this proposed amendment is to promote redress, advance economic development, increase agricultural production and food security.”

One wonders who will be drafting that proposed amendment. Is someone, somewhere in Luthuli House, doing so and passing along notes? That is quite often how these things work. Politics is a messy business and motives are seldom pure.

 In addition, the ANC will need a two thirds majority to amend the Constitution, according to s74. The ANC holding 249 seats will be short of that number but the EFF will no doubt come to its rescue.

Yet one can’t help but think that the crunch issue, which was missed since it was overshadowed by the emotive land issue, was what Ramaphosa said briefly about the economy. This was on the back of some really dire economic results released by StatsSA that Ramaphosa said was “worrying” and warranted a stimulus package.

Unemployment is up and 6.1 million (27.2%) working-aged South Africans are without work. This is not “worrying”, it is a national crisis that will take years to fix, if we ever can break the back of unemployment in South Africa.

The solutions too are ones for the long haul such as urgently fixing our education system, to name but one measure within government’s power. So while the land debate is urgent and important and we should not minimise the effect of this “original sin” on our society, what our country urgently needs is jobs. Because along with a job comes not only a means of living but the dignity to participate fully in society. Unfortunately, if past land reform is anything to go by, the poor and dispossessed will not be the beneficiaries of redistribution and this will not be a way out of poverty or joblessness.

Ramaphosa will need to show that the government he leads will do it differently – a tall order given the divided party he presides over and a national election which sits uncomfortably on the horizon. The long game will require that the centre holds while Ramaphosa negotiates the politics. DM


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