Opinionista Saul Musker 2 August 2018

The real problem with amending the Constitution

In a hastily prepared address late on Tuesday night, President Cyril Ramaphosa announced the intention of the ANC to amend the Constitution “to enable equitable access to land”. This announcement has predictably been met with extreme responses – euphoria in some quarters, and dismay in others. What, though, does it really mean for South Africa?

The nature and timing of Ramaphosa’s announcement, late at night following a meeting of the ANC’s National Executive Committee (NEC), suggests that the President must have come under severe pressure from party leaders to make its position on land reform public (or, perhaps, that the party cannot contain leaks until the next day). He began his address by reiterating what has long been common cause among lawyers, academics, and policy makers: that the Constitution in its current form already allows for expropriation without compensation, and presents no obstacle to land reform.

A proper reading of the Constitution on the property clause enables the state to effect expropriation of land with just and equitable compensation and also expropriation without compensation in the public interest… the Constitution as it stands does not impede expropriation of land without compensation.”

Those of us who have long insisted upon this position breathed a premature sigh of relief at its acknowledgement. Before we could celebrate, however, the President continued:

It has become patently clear that our people want the Constitution to be more explicit about expropriation of land without compensation, as demonstrated in the hearings. Accordingly, 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.”

As the address went on, the President’s attempt to defend the correct interpretation of the Constitution while simultaneously justifying its amendment became more and more strained and confusing. The challenge, of course, is quite straightforward. There is such overwhelming evidence that the Constitution does not need to be changed – including from Ramaphosa’s own legal advisers and prominent lawyers like Adv Tembeka Ngcukaitobi – that the President cannot argue the opposite. At the same time, the political pressure to amend it from both within and outside the ANC has grown to such a level that it is impossible to ignore.

Section 25 of the Constitution is explicit in allowing for the expropriation of land by the state “for a public purpose or in the public interest”, and clearly stipulates that the “public interest” includes “the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources.” In subsection (9) it goes even further, asserting that “no provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination”.

There is nothing whatsoever in the Constitution that commits the state to a willing buyer-willing seller land reform policy. As activist and academic Professor Ruth Hall has put it:

I have not heard any compelling reason why the Constitution has been an impediment to land reform. It clearly has not… the Constitution in Section 25 provides a very powerful mandate for transformation, redistributing land, and restoring land to the dispossessed.”

Even Vincent Smith, the ANC Member of Parliament responsible for the Joint Constitutional Review Committee, has agreed that Section 25 “does not need to be amended… in its current form, it’s sufficient to facilitate the land reform project”. Indeed, if the ANC felt that it was necessary to further specify conditions or criteria for expropriation of land – as the President suggested – this could be accomplished, and indeed would normally be done, through legislation alone.

This raises an interesting problem. On the one hand, why should proponents of expropriation without compensation argue so forcefully for the need to amend the Constitution? On the other hand, if the Constitution already allows for this in its current form, why should opponents of land reform be so concerned by its amendment?

The real problem with the proposed constitutional announcement in fact has nothing to do with land reform policy. There is little doubt that the land restitution process has to date failed to adequately address the brutal legacy of land dispossession under apartheid. For thousands of black families who were forcibly removed from their land under racist legislation and who remain poor and landless today, it is simply absurd to insist that existing landowners should receive the market price of land which is not rightfully theirs. The drafters of the Constitution recognised this, and formulated the property clause specifically to enable expropriation as a result.

The danger of amending the Constitution is not, therefore, that it will facilitate expropriation without compensation. That would have happened anyway.

The actual danger is two-fold. First, the public debate that has occurred since the EFF proposed a constitutional amendment has revealed the extent to which the Constitution is ignored or misunderstood by many South Africans. Equally, it has exposed the reality that a narrative which blames the Constitution for a perceived lack of progress over the past two decades has gained ground. In every public hearing, people from all walks of life and on both sides of the debate spoke as though the Constitution prevented the state from expropriating land. Time and time again, Julius Malema and other prominent political leaders got away with claiming – in Parliament, public rallies, and news interviews – that the Constitution was the problem.

By capitulating to unnecessary demands for a constitutional amendment, President Ramaphosa has reinforced the false narrative that the Constitution is a “sell-out document,” that it protects and reinforces the privileges of the white minority, and that it stands in the way of meaningful social and economic transformation. The contrary is true. The Constitution provides a capacious framework for a wide variety of policies and political agendas, and explicitly commits the state to work actively towards restitution and redress. The President and the ANC have missed an important opportunity to make this point forcefully, to counter a narrative that unnecessarily weakens public support for the Constitution, and to make full use of its existing provisions.

Second, the misplaced emphasis on the Constitution has allowed the ANC to divert attention away from its own failure to deliver swift and effective land reform since the end of apartheid. Making the Constitution the scapegoat, rather than the ANC government, was a serious political mistake of the EFF. It was too easy for the ANC to go along with this approach, and thereby to pull the rug from under the feet of its opposition. The Constitution is left as the only casualty, made to shoulder the burden of the government’s consistent failure.

Instead of hysterical warnings about land grabs and economic collapse – neither of which will happen – we should be concerned about an unnecessary and unjustified amendment of the Constitution, and a missed opportunity to defend it. In the long term, these will be the greater danger to South Africa. DM

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