Opinionista Paul Hoffman 16 January 2020

There are none so blind as those who will not see

The aims of the National Democratic Revolution as espoused by the ANC, and reiterated in 2020’s January 8th Statement, are in direct conflict with the Constitution of South Africa.

Oscar van Heerden’s columns are usually insightful and informative. In his most recent contribution to the columns of Daily Maverick, he has used a turn of phrase that requires, even demands, further unpacking.

The phrase is: “practice without theory is blind and theory without practice is suicidal”. He is referring to the lot of the ANC in 2020 as discerned in its latest January 8th statement.

Blindness and suicide are, of course, not mutually exclusive concepts. The blind can commit (political) suicide and the suicidal can be blind.

In the context in which the phrase is used by Van Heerden, the theory of the National Democratic Revolution (NDR) is being juxtaposed with the practical reality on the ground in South Africa today. He enjoins the president to lead, with the people doing the worrying. The leadership urged is, on the argument put forward, leading the NDR to its glorious fulfilment – the national democratic society in which the ANC secures hegemonic control of all the levers of power in society and magically solves the triple threats of inequality, joblessness and poverty.

Socially engineering the redistribution of existing wealth by enforcing some race-based project (in a non-racial society, nogal) rather than the creating of fresh wealth via education, in its broadest sense, job creation through new investment in South Africa is what the NDR apparently contemplates. Van Heerden bemoans lingering racial inequality after 25 years of ANC rule, citing lack of fealty to the aims of the NDR as the cause of this shameful phenomenon.

The issue that Van Heerden skirts is that the ANC-led Tripartite Alliance is not at large simply to impose the NDR on the country. The National Accord which gave rise to the current constitutional dispensation is anything but revolutionary. Transformative: certainly; revolutionary, not.

Our Constitution is our supreme law and the rule of law is similarly regarded as the supreme guiding force in South Africa. Both are incompatible with revolution. Indeed, the settlement which gave birth to the new South Africa is one which envisages multi-party democracy under the rule of law with openness, accountability and responsiveness as the watchwords that are foundational to the new non-racial, non-sexist order. There is no room for revolution because the Constitution says conduct or even laws passed have to be consistent with the Constitution on pain of being struck down as invalid for want of compliance with the rule of law.

It is, constitutionally speaking, possible to change the system into one in which the longed-for-by-some hegemony of the NDR is put in place legally. To do so requires a 75% majority in the National Assembly and a supporting vote of at least six of the provinces in the National Council of Provinces. Failing that, the imposition of the NDR has to involve truly revolutionary methods of an extra-constitutional kind that will bring the wrath of the UN and AU down on the revolutionaries who attempt it.

The wrath of the people of South Africa is also likely; they have grown attached to their Constitution, are proud of it and are willing to fight for its preservation. These sentiments are evidenced by the successes of public interest litigation which civil society organisations and public-spirited individuals have brought to court whenever the government strays from the parameters that are consistent with the Constitution.

The obligation of the state to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights is one which is treasured by the people of South Africa. This obligation has led to successful challenges to the way in which commuter trains are operated, schools are run, anti-corruption machinery of state is structured, patients are cared for and laws are made.

Highly placed cadres of the NDR rightly bemoan the activities of the judiciary as being the work of “counter-revolutionary judges”. All of the judges in South Africa are, by definition, and by their oaths of office, bound to be counter-revolutionary. This position derives from the words of the Constitution itself:

The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

No person or organ of state may interfere with the functioning of the courts.” [Section 165(2) and (3) of the Constitution.]

There is no doubt that the Constitution is a transformative document. Through its provisions, South Africa has been taken from an authoritarian race-based parliamentary sovereignty in which politicians had the upper hand, to a constitutional democracy under the rule of law in which the Constitution itself has the upper hand via its entrenched supremacy. Unless and until 75% of the National Assembly decides otherwise (a forlorn hope at this stage) the imposition of the NDR on the people of South Africa is doomed to fail as an aim of the government. The politicians are constrained by the rule of law, by the supremacy of the Constitution and the duty of the state to respect the rights guaranteed to all (including minorities) in the Bill of Rights.

Where the courts participate in transformation of society in South Africa, they do so within the limits set by the Constitution, not the NDR. Any attempt to impose the NDR in a manner that is inconsistent with the Constitution is likely to be met with resistance and with court orders invalidating the revolutionary changes sought.

All of these points are Constitutionalism 101. Sleight of hand by revolutionaries who carefully weigh what they call “the balance of forces” and seek to implement the NDR agenda using “dexterity in tact” is doomed to fail judicial scrutiny due to the vigilance of civil society and opposition formations in Parliament which do genuinely embrace constitutionalism.

Lazy thinkers tend to divide the ANC into two broad factions which for convenience are called “the constitutionalists” led by the President and the “radical economic transformationists” currently led by Ace Magashule, the secretary-general of the ANC.

Van Heerden rightly identifies the NDR as the guiding star of the ANC. All factions are revolutionary; some more impatiently so, others using greater “dexterity in tact”. The blindness of which he complains in his column is actually the blindness to the supremacy of the Constitution and the concomitant inability to discern a viable revolutionary way past that supremacy.

The suicidal tendencies are, on Van Heerden’s analysis, the endeavours to run a revolutionary agenda in a constitutionally compliant way – something the ANC has not achieved in 25 years in government and, given the revolution’s inconsistency with constitutional values, something actually unattainable short of a revolutionary coup d’etat. The Zuma-era State Capture project came close, but was thwarted by civil society and opposition party complaints to the public protector.

A bloody alternative form of State Capture at the point of a gun is too ghastly to contemplate.

The ANC is not so blind as not to see the advantages of constitutionalism and not so suicidal as to seek to upset the constitutional dispensation by revolutionary means.

The problem at hand is neither creeping blindness nor some suicidal tendency. Caught between the supremacy of the Constitution and the impossibility of hegemonic control without a revolution that abolishes the Constitution, the ANC limps on, half-blind, semi-suicidal and paralysed to bring about the changes that would so easily trounce the scourges of corruption, poverty and inequality.

It is time for the ANC to heed the advice of the late Professor Kader Asmal. He called on the ANC to abandon the NDR and get on with implementing the vision embodied in the Constitution, a vision which is consistent with the Freedom Charter of 1955.

Professor Asmal resigned from Parliament rather than becoming obliged, via party whips, to vote for the demise of the Scorpions. If more of his ANC caucus colleagues had followed his lead, Jacob Zuma would have faced trial in 2008 (not 2020 maybe), State Capture would probably not have occurred and the country would not be impoverished by looters to the extent of an estimated R1.5-trillion (Pravin Gordhan) or half-a-trillion (Cyril Ramaphosa).

If these demonstrable home truths do not prompt suicidal ideation or at least the desire to self correct among the cadres, their blindness to what they have wrought will remain writ large in the history of ANC governance in South Africa, both in its practice and in its theory. DM

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