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The long-term threat to the constitutional model that S...

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The long-term threat to the constitutional model that South Africa chose in 1996 is real


In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

The long-term threat to the constitutional model that we chose in 1996 is real, notwithstanding the belated intervention of some of the security forces.

From the gallons of ink used to make sense of the horrendous week that engulfed South Africa, the editorial in Daily Maverick most eloquently captured the consequences. Constitutional democracy hangs by a thread and is unlikely to be protected, let alone enhanced, unless the internecine warfare within the ruling party is resolved speedily in favour of the constitutionalists within the party, and decisive action is taken to harness the obvious desire of the majority to eschew populism. 

That claim highlights the core of the problem facing a country overwhelmed by poverty, predicated on the most unequal of foundations and where a meaningful growth path was lost long ago, hidden in the weeds of an outdated ideology, exclusive rent-seeking and the proposition that the party is über alles. Long ago the ANC made a Faustian pact to ensure the continuance of its political domination. Jacob Zuma was seen as a “useful idiot” at worst, a flawed deus ex machina at best to capture the province of KwaZulu-Natal.

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A moment’s pause would have borne the realisation that the political vision of Oliver Tambo and those like Pallo Jordan, who sought to convert the idea of the Freedom Charter into a viable, transformative constitutional model, was totally alien to Jacob Zuma and the cronies that he enticed to join the ruling party. The latter care not a jot for any form of legally based governance save for that which promotes unbridled capture of rent, even when this is at the expense of the millions of South Africans who live on the daily margin. Useful voting fodder, yes, but a keen appreciation for the large cohort of the country which needs a state focused on the needs of the poorest of the poor is not on the populist agenda.

Thus, the inevitable happened and when the rent-seekers saw their champion imprisoned, they resorted to the only tactic that is congruent with their philosophy, namely, wanton destruction designed to imperil the constitutional order, cynically using foot soldiers drawn from the very communities which the Zuma administration had forgotten in their pursuit of ill-gotten gains and their assistance to the carpetbaggers, in particular the Guptas.

The long-term threat to the constitutional model that we chose in 1996 is real, notwithstanding the belated intervention of some of the security forces. A comparison with a country where a president who had lost power sought to implement the same strategy should provoke anxiety. In January, Donald Trump promoted an insurrection designed to reverse the consequences of his electoral defeat. Constitutional safeguards were regarded as an obstacle to his continued presidency and he was supported by those who had benefited from his calamitous regime. The call to make America white again sufficed to provoke millions who held grievances caused by rising inequality and increasing irrelevance.

That Trump cared nothing for their loss of jobs or overall welfare was of no significance. Aided by Fox News, social media and a savvy exploitation of the adverse effects of globalisation, Trump’s trumpet drowned out rational debate. The assault on the Capitol caught the security agencies and the police off-guard and for some hours US democracy appeared to teeter on the brink. More than six months later and the threat remains as the Republican Party vigorously continues the Trump assault, this time by reconfiguring the electoral system under the watchless eye of a Supreme Court, the majority of whom are right-wing politicians clothed in judicial robes.

Jacob Zuma is cut of the same autocratic cloth. For him the guardrails of constitutional democracy are an obstacle to the main aim – la looter continua. Like Trump, he exploits economic grievances, save that, in an even more devastating fashion, his rule exacerbated the economic conditions that give rise to economic desperation. Like Trump, he can call on some media, of which the oxymoronic Independent newspapers together with relatively well-organised bots are, mercifully for those who believe in democracy, the best on offer. And then there are the lawyers who assist, most of whom follow the Rudy Giuliani school of jurisprudence. And more parallels, there are the children: Donald Junior and Duduzane, Ivanka and Duduzile.

In the US, the security forces led by General Mark Milley made it clear that the Constitution is more important than any single leader. The fragile nature of the South African state leads to an even more uncertain future. Almost continuous exposure of the looting on television showed the police in what appeared to be complete disregard for looters making off with goods from shopping malls. Another oxymoron, the intelligence agencies, were characterised by a lack of intelligence; hence the jury is still out as to the capacity of the state to protect our constitutional democracy.

What then can be done to restore the possibility of a viable future for the model of governance that we chose in 1994? 

In the first place, there must be prosecutions of all the instigators and they must be done to ensure convictions and long terms of imprisonment. The notion that those who instigated the violence can continue with impunity is the death knell of the rule of law. At the very least, there must be credible investigations into the roles played by people like Carl Niehaus and the Zuma children. 

In the second place, the president needs to talk candidly to the nation, assuring the people of South Africa that viable steps are being taken and that those who have been part of this assault on constitutional democracy, even to the extent of justifying it by calling for the release of Zuma, have no place in the ANC. The country has had its fill of speeches which have more of a place at the golf club annual dinner. It is time for some inspirational line of march from Ramaphosa.

At the same time, the model of economic austerity, much favoured by the Treasury, needs to be dumped in a waste bin. Bold steps have to be taken to reduce the economic hardships caused by Covid-19 in that a continuation of the present tepid forms of relief will guarantee only one outcome ­– increasing unrest and thus no viable economy. The Institute for Economic Justice put out a paper recently which argued cogently for an additional R70-billion for short-term emergency economic relief. That is the least that should be implemented immediately.

The take-home point is the following – if there is continued internecine warfare within the ruling party, coupled with the inability to charge those who orchestrated or provoked the violence and the absence of a bold economic package that finds its way to those most in need, we may as well apply to court for the liquidation of SA Constitutional Limited. DM


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