There is no doubt that the Constitution of South Africa is a transformative document, a framework for creating a “better life” for all, united in diversity, and a set of values and principles to guide the country and its public administration in that direction.
While the word “transformation” is nowhere to be found in the Constitution itself, a conspectus of what it sets out to achieve, taken together with what preceded it, makes it pellucid that transformation is at its heart.
In the old South African parliamentary sovereignty, Balkanisation of the country in pursuit of an ideology of separation of arbitrarily assigned racial and tribal groups and authoritarian “rule by law” were the order of the day.
In the new South Africa, there is a unitary state in which the supremacy of the Constitution and the rule of law hold sway. These are the greatest and most abiding transformations effected pursuant to the National Accord which preceded the constitution-making process in the years between February 1990 and February 1997. The process of transforming SA society began with the unbanning of the liberation movements and continues to this day, marked by the coming into operation of the transformative Constitution currently in place in February 1997.
According inherent human dignity all due respect, the promotion of the achievement of equality and the enjoyment of the freedoms guaranteed to all in the Bill of Rights are foundational to the new order. Openness, accountability and responsiveness inform multi-party governance. Non-racialism and non-sexism are also cornerstones of the new order.
The very notion that conduct and laws inconsistent with the Constitution are invalid was virtually unknown in the parliamentary sovereignty of the pre-liberation order. In essence, constitutionalism puts the supremacy of the Constitution and the rule of law first; politicians ignore these features of the new order at their peril. Their extra-constitutional activities are regularly struck down as invalid by the courts of law which are independent and impartial in their application of the law and the Constitution.
A major transformative feature of the new constitutional order is the introduction of a justiciable Bill of Rights as Chapter Two of the Constitution. The state is obliged to “respect, protect, promote and fulfil” the rights guaranteed to all in the Bill of Rights. Some of these rights are expensive to deliver. The progressive realisation on the basis of available resources is the mechanism devised to make it possible to make healthcare, housing, welfare and other rights available. There was no Bill of Rights in the old South Africa.
The supremacy of the rule of law entails fealty to the four pillars of the rule of law that have been identified by the World Justice Project as conformity to four universal principles:
The government and its officials and agents are accountable under the law;
The laws are clear, publicised, stable and fair, and protect fundamental rights, including security of persons and property;
The process by which the laws are enacted, administered and enforced is accessible, fair and efficient; and
Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the make-up of the communities they serve.
If fealty to these principles is compared to the system that obtained pre-1994 (when the Interim Constitution came into force) it is plain that there has been a sea change from the past of oppressive authoritarianism that is largely attributable to the transformative content of the Constitution and its status in the hearts and minds of the people of South Africa. Politicians are still getting used to the idea that they must be guided by the Constitution in all that they do and decide.
For example: The notion of spending R3.4-billion to eliminate pit toilets from the educational facilities of the land, 25 years after the Interim Constitution guaranteed dignity, life and bodily integrity to all, is an indication that all the lobbying and litigation has not been in vain. Government is warming to the forms of service delivery that the Constitution requires, either directly or by implication.
Constitutional checks and balances on the exercise of power, the doctrine of the separation of powers and the role of the Chapter Nine institutions (as a sort of fourth sphere of governance) have, with great help from the courts, saved the country from capture by nefarious business people working in cahoots with crooked public servants and bent politicians. The Zondo Commission expects to report by the end of 2020 and the flow of prosecutions it should generate will surely demonstrate the transformative nature of our Constitution vividly. All are equal before the law, without exception.
The Constitution does not have any specific ideological bias; if anything, it commits the nation to steering a pragmatic course that is informed by a social-democratic or “middle-of-the-road” form of ideology. Certainly, many of the socio-economic rights guaranteed to all in the Bill of Rights would, upon delivery, serve to create a less unequal society, one in which caring and compassion replace the less attractive excesses of the Struggle era.
Multi-party democracy under the rule of law has not come easily to the tripartite alliance which has governed at a national level in South Africa since 1994. The alliance is led by a self-described “liberation movement” and includes the SA Communist Party and Cosatu, a trade union grouping consisting mainly of unionised public servants who are socialistically or communistically inclined. Clinging to the “liberation movement” label long after liberation has been achieved is difficult to justify and harder to understand. “Liberation from what?” and “revolution against whom?” are difficult questions when posed to a governing alliance that has been in power for a quarter of a century.
This ANC-led alliance does not regard the Constitution as the end goal of its endeavours. It is instead a “bridgehead” in the ongoing revolutionary struggle toward victory in the national democratic revolutionary striving for hegemonic control of all the levers of power in society. Note well, “in society”, not merely in government. To this end, loyal cadres of the alliance are deployed wherever power is exercised. This is done legally in the world of politics and illegally in the public service, state-owned enterprises and elsewhere. The recommendations of the ANC cadre deployment committees based in Luthuli House are seldom ignored or rejected when it comes to appointing senior public servants, boards of state-owned enterprises and even functionaries in the Chapter Nine institutions or on the Bench.
The goals of the revolution, called the NDR or “National Democratic Revolution”, are what the cadres are striving to achieve in accordance with the constitution of the ANC, not the forms of transformation that are envisaged by the national Constitution and its Bill of Rights. Hence the failure to house shack dwellers in urban areas, to educate the youth properly, to provide healthcare that does not include Esidimeni tragedies, policing that does not entail a massacre at Marikana, clean and corruption-free governance and so on.
Functionaries in Luthuli House are critical of constitutionalism. It is the antithesis of their strivings for hegemony. Impunity and entitlement inform their thinking, not transformative constitutionalism. They carp at decisions of courts that uphold the law; they bemoan the “counter-revolutionary judges” who have made it difficult to get away with any idea, scheme, conduct or a new law that is inconsistent with the Constitution. Self-evidently, all judges should be counter-revolutionaries because they are sworn to uphold the major stumbling block to the achievement of revolutionary hegemonic goals, the Constitution itself.
Accordingly, when transformative constitutionalism is discussed loosely, it is as well to inquire whether the transformation contemplated by the NDR is what is on the table, or the transformation contemplated by the values and principles of the Constitution.
They are not the same. DM