The acceptance of constitutionalism under the supremacy of the rule of law is undoubtedly the major achievement of the national accord. 

The Constitution is the crowning achievement which followed the unbanning of liberation movements in 1990 and the abandonment of the form of parliamentary democracy that held sway in SA during the apartheid era and going back to the Union in 1910.

Apart from the basic tenets of constitutionalism set out in Chapter 1 of the Constitution, the adoption of the Bill of Rights, which is Chapter 2 of the Constitution, can be regarded as the key to achieving peace that is secure (a safe society), progress that is sustainable (a dispensation that is mindful of both environment and people), and prosperity that is equitably shared (a better life for all).

Under the Bill of Rights, the state is obliged to respect, protect, promote and fulfil the many and various rights guaranteed to all in it. 

The rights so conferred are justiciable, which means that those unhappy with performance on the obligations it contains are entitled to sue for proper performance of the obligations put upon the state in the Bill of Rights by “We, the people of South Africa”.

It is true that some of the rights are subject to progressive realisation after the state takes “reasonable legislative and other measures within available resources, to achieve the progressive realisation of each of these rights” to quote, by way of example, Section 27(2) which relates to the right to access to healthcare, food, water and social security. 

Most rights, including the right to basic education, have been realisable forthwith from day one of the current constitutional dispensation in SA.

ANC policy vs Bill of Rights

Now that SA has celebrated its 30th anniversary of freedom, and Human Rights Day 2024 has come and gone, it is instructive to consider a few aspects of ANC policy that are at odds with the Bill of Rights.

Before launching into the minutiae, it is prudent to observe that the guiding light of the ANC is its National Democratic Revolution (NDR) which it still pursues despite being in power in SA for 30 years and accordingly in a position to pass the type of legislation that could create a better life for all, as contemplated by the Bill of Rights, which is part of the supreme law all politicians affirm or are sworn to uphold.

ANC politicians all too often put the NDR ahead of the obligations to uphold human rights because the primary aim of the NDR is to secure what it calls “hegemonic control over all the levers of power in society”.

The doctrine of the separation of powers, the carefully crafted checks and balances on the exercise of political power and the independence of the judiciary, the Chapter Nine Institutions and the media, all guaranteed in the Constitution, fall by the wayside in the striving for comprehensive control.

Anthea Jeffery, a senior researcher at the SA Institute of Race Relations, has written a book titled “Countdown to Socialism” on the topic of the NDR in SA since 1994. She recently spoke on the topic at a conference.

Despite setbacks in court, when challenges against NDR-based laws and policies have been successfully made, the ANC persists with its fealty to the NDR over the supremacy of the Constitution and the rule of law.

This fact alone explains the willingness of ANC deployees to loot, to attempt to capture the state (which belongs to the people, not any political party) and to generally behave in kleptocratic fashion to the detriment of the common weal.

These activities are to the huge disadvantage of the poor who are the main victims of the attempts to roll out the NDR, as explained by Jeffery in her chapter, The Working Class. She unpacks an escalating unemployment crisis and menial permanent public employment for the jobless.

The diversion of a great deal of public money into the hands of crooks during the looting that State Capture involves has impoverished the poor masses, especially in the rural areas of the country where children starving to death or surviving stunted is well documented.

As has been recorded in 2007 by Thabo Mbeki’s biographer, Mark Gevisser, Mbeki worried that:

“Zuma and his backers had no respect for the rule of law, and would be unaccountable to the constitutional dispensation the ANC had put in place if they came to power. There was also the worry of a resurgence of ethnic politics, and – given his support from the left – that Zuma’s leftist advisors would undo all the meticulous stitching of SA into the global economy that Mbeki and his economic managers had undertaken over 15 years.” – The Dream Deferred pp xli.

The economic growth rates achieved in the Mbeki era have not been matched since Jacob Zuma won at Polokwane in 2007, wearing his “100% Zulu Boy” T-shirt. 

BRICS, authoritarians and theocrats

By joining the soon-to-be expanded BRICS grouping, Zuma turned SA’s back on Western capitalist allies in favour of the authoritarians, and now theocrats, in the BRICS grouping. None of these countries has any respect for human rights. Iran violently punishes women who do not wear their headscarves properly. Human rights are unknown in Russia and China.

When one of the BRICS nations, Russia, invaded Ukraine, the response of the SA government was muted and confined to setting up a multinational peace mission.

After war broke out between Hamas and Israel on 7 October 2023, SA’s response was to take Israel to the International Court of Justice complaining of genocide against those living in Gaza.

Andrew Kenny has asked the questions relevant to the foreign policy of the ANC in his piece on the Isis attack on Russia. It is quite clear that joining the BRICS grouping has not aligned the ANC government of SA with the human rights obligations it has under the Bill of Rights.

Glenister cases

Perhaps the most egregious and long-lasting failure of the ANC to uphold human rights in the manner contemplated in the Bill of Rights is its refusal to take to heart the findings of the Constitutional Court in the successful challenges against the constitutionality of the Hawks legislation in the Glenister cases.

The court made corruption a human rights issue in the most trenchant of terms:

“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

Instead of honouring its international obligations to put in place an independent entity to counter serious corruption that is imbued with the criteria set out in binding terms by the court, the ANC tinkers unconstitutionally with the architecture of the National Prosecuting Authority, unwilling to surrender its hegemonic control of the levers of power in the criminal justice administration to an entity that is actually constitutionally compliant – one capable of relieving ANC bigwigs and their allies in business of the loot that their corruption has removed illegally from the public purse and of putting convicted persons behind bars for the full duration of the sentences imposed on them by our impartial and independent judiciary.

NPA failures

While pleading for greater institutional independence for the National Prosecuting Authority (it currently resides under the thumb of the minister of justice and has as its accounting officer the director-general of justice), the current NDPP, Shamila Batohi, stoutly maintains that she is free of executive interference.

If that is so, it is probably because her failures in court and inability to extradite the Guptas from Dubai suit those in Luthuli House perfectly. 

The political embarrassment of a Gupta trial is surely a spectacle the ANC would prefer to avoid in an election year.

The ANC is indeed the only major political party that persists in a policy that keeps the task of countering serious corruption within the seriously compromised NPA. Stephen Grootes points out that the NPA has a long way to go to redemption.

All the other big political parties favour the establishment of a new Chapter Nine institution to counter serious corruption. This policy position is based on the fact that no such institution is required to report to the executive and all are free of executive control.

Their reporting lines are to our multiparty Parliament where political contestation would preclude the types of executive denial and cover-up we see on the topic of interference in prosecutions by members of Cabinet.

It is also true that the Chapter Nine route is compliant with the Glenister decisions, while the Idac bill proposed by the ANC is not.

As a coalition government seems likely after the May elections, the ANC should be proactive about alignment with likely coalition partners that may be willing to collaborate with it.

The failure of the government to implement properly the decisions in the Glenister cases is intolerable and against the national interest in clawing back the loot of State Capture in particular and looting of the public purse in general. 

Litigating that failure beckons. DM