Professor William Gumede suggests that: “The society-wide consensus in South Africa forged after the ending of apartheid in 1994, has now collapsed because of corruption, dishonesty, breakdown of basic moral standards, breakdown of the rule of law, competing governance systems to the Constitution, state failure, tribalisation, the exclusion of large numbers of South Africans based on colour, gender and where they live and uncaring public and government representatives.”

The evidence available in the media, the reports of commissions of inquiry suggests that the learned professor is right. 

The “wurgvraag” or burning question is what can be done to restore the country to a trajectory on which peace for all is secure, progress for the downtrodden is sustainable and prosperity is equitably shared?

Those who laboured long and hard to formulate our supreme law, the Constitution, pondered the issues Gumede raises. Their solutions to the issues are to be found in the wording of the Constitution itself. The state is obliged to respect, protect, promote and fulfil the human rights of all in SA. Respect for human dignity, the promotion of the achievement of equality and the enjoyment of the human rights guaranteed to all are the basic values we are supposed to be striving for in SA.

The Constitution tells us all how to achieve this happy state. We are bound by the rule of law, which the Constitution regards as “supreme”. 

Ours is a multi-party constitutional order in which there are checks and balances on the exercise of state power, a whole fourth leg of governance called the “Chapter Nine Institutions” to bed down the new system in the traditional three branches of government, being the legislature, the executive and the judiciary. The doctrine of the separation of powers keeps everyone in their own lane and the values and principles for the public administration call for standards of excellence not yet achieved in most institutions of government.

It is so that not enough of the people in SA know, understand and live out the values of the Constitution. There has been little effort to inculcate its values in the populace, and there are many efforts to undermine its provisions. Not least among these is the toxic practice of cadre deployment in the public administration and state-owned enterprises. The “comrades” so deployed march to the sound of a different drum, often ignoring or overriding the values of the Constitution. The way forward involves a great deal of public education around the advantages of the Constitution for the ordinary folk living in SA. 

To this end a new edition of the citizens’ handbook on the Constitution has been published by Jutas as the third edition of “Know Your Rights, Claim Your Rights”. The handbook is the layman’s guide to understanding the parts of the Constitution that are relevant to the relationship between state and citizen.

Everything in its ‘right’ place

There has been no official appetite for promoting the Constitution. The reason is that the tripartite alliance of the ANC, SA Communist Party and Cosatu have a strategy and pursue their tactics to roll out what they call the National Democratic Revolution or NDR. The tenets of the revolution are at odds with the values of the Constitution mainly because the central idea of the alliance is that it should put itself in a position in which it has “hegemonic control of all the levers of power in society”. That goal is deeply at odds with the values of the multi-party Constitution in place in SA. The pursuit of the NDR is at the root of the various ailments identified by Gumede. The cure to the ailments involves the abandonment of the NDR, if not by the tripartite alliance, then by the voters of SA when they cast their votes in the upcoming general elections later this year.

There is one province in which the NDR does not hold sway at provincial and local levels. The Western Cape has been governed by the Democratic Alliance for over a decade, and it shows in the levels of service delivery, the audit results achieved in the official audits by the Auditor General and in the influx of people into the province, all in search of that ever elusive “better life” that is envisaged in the Constitution itself. No children starve to death in the Western Cape, they do not drown in pit latrines at school and they achieve well in their educational outcomes and in their job prospects. The water in the taps they use is of better quality than in most other provinces and even “load shedding” by Eskom is alleviated by local solutions in place in Cape Town.

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It is of course open to the alliance partners to reconsider their attachment to the essentially socialist agenda of the NDR. It is a system that has been tried elsewhere in the world with results that fit the paragraph penned by Gumede and quoted above. The Soviet Union was dissolved and socialism has been abandoned there and elsewhere in the world where it has been tried. The Chinese now ask whether the cat can catch mice, not whether it is a white capitalist cat or a black socialist cat. Venezuela and Zimbabwe are examples of the failure of the ideology that underpins the NDR.

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Turning to solving the challenges posed by the various features identified by Gumede, it is possible to lump together the corruption, dishonesty and disregard of the rule of law. These unfortunate features of SA today are largely attributable to the pursuit of the NDR. Deployed cadres do not feel beholden to constitutional values, they regard themselves as revolutionaries bent on replacing the current order. Hence the closure of the Scorpions, a efficient anti-corruption body, the disabling of the Hawks and the Investigating Directorate in the National Prosecuting Authority. In the place of the rule of law a culture of corruption with impunity has burgeoned. It has blighted the land to the tune of trillions of rand of public money looted by those in positions of political power and their fellow travellers in the business sector.

So “revolutionary” are some of the cadres of the NDR that one of their leaders, Minister Nkosazana Dlamini Zuma, was so bold as to suggest, when the pandemic struck in 2020, that it was time to consider “class suicide” which is a theory proposed by some communists that has never been implemented anywhere in the world. 

The inconsistency of the NDR with constitutional values strongly suggests that it should be scrapped — a way forward proposed by the late Professor Kader Asmal, who was an architect of the Constitution and a cabinet member in the new SA.

Competing value system

Gumede has correctly identified the presence of a competing value system as part of the problem. He is too polite to identify it as the NDR, a failed project of the entire 30 years of ANC-led government since 1994.

If corruption is not tackled head-on it will corrode the state to the extent that it will fail, possibly sooner than most observers think. The way to deal with the corrupt is to empower the state to prevent, combat, investigate, prosecute and punish them while raking back the loot of state capture and various other enterprises like the arms deals, the Hitachi Power Africa deals and many more.

The Constitutional Court has already laid down in binding terms the criteria by which to judge the efficiency and effectiveness of corruption-busters. The best way to achieve compliance with the criteria so laid down is to establish a new Chapter Nine body that reports not to the executive but to parliament.

All of the nation-building and other improvements possible when the NDR is gone can be financed out of the loot recovered. The missing ingredient at present is the absence of the political will to do what is required. The electorate should be astute to ensure that those who get their votes are committed to constitutionally compliant reform of the criminal justice administration. Anything less won’t do. DM