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Constitution is no holy cow

BURNT OFFERING: Chief Justice Judge Mogoeng Mogoeng with Deputy President Kgalema Mothlanthe after lighting the flame of democracy to celebrate the 15th anniversary of the signing of the South African Constitution at Constitution Hill in Johannesburg. Photo: LAUREN MULLIGAN
BURNT OFFERING: Chief Justice Judge Mogoeng Mogoeng with Deputy President Kgalema Mothlanthe after lighting the flame of democracy to celebrate the 15th anniversary of the signing of the South African Constitution at Constitution Hill in Johannesburg. Photo: LAUREN MULLIGAN

BETWEEN April 27 1994 and December 2 1996, South Africans of good standing started constitutional deliberations as the Constituent Assembly (CA), without any notion of a zero-sum, game political settlement.

The CA was tasked with drafting and approving a permanent constitution for the democratic state by May 9 1996. In its inherent good faith, the ANC never attempted to alter the letter and the spirit of the submissions made to suit itself.

This reminder is stimulated by the concerted ideological onslaught by a coterie of peacetime heroes that is directed at the ANC as preoccupied with changing the constitution. These "heroes" were unknown during the height of apartheid. They discovered their thinking caps from a constitution largely authored by the ANC.

Some of these post-liberation upstarts are driven by a singular objective: to portray the ANC as unfit to govern, and even less fit to govern over people of other races.

Constitutional reviews are not irrational decisions but are informed by specific reasons which arise from time to time. As provinces and local governments are tasked with delivery mandates, it is rational and desirable for a discussion on their size, functional abilities and competencies to take place.

The ongoing discussions to allocate responsibilities of housing and public transport to local government are not fortuitous exercises. These are serious constitutional discourses.

Parading as democrats with exotic acronyms, this polyglot assemblage has allowed a heresy to prevail: that any South African, except the ANC, has an inalienable right to discuss our constitution. According to this group, the freedom of expression enshrined in our constitution does not apply to the ANC.

The ANC's contribution to the current constitution was not coincidental.

In 1923, the ANC was the first continental movement to adopt the Bill of Rights, in 1943, adopted Human rights in the African Claims, even predating the Universal Declaration of Human Rights by the United Nations in 1948.

These two documents, coupled with the Freedom Charter in 1955, were adopted with a strong emphasis on socio-economic rights, all of which have found emphasis in the constitution of the republic.

How can the 2012 ANC be a threat to the constitution it laboriously gave birth to?

The constitutional changes of 1909, 1961 and 1983 had unintended consequences: the coalescing of the disenfranchised into the ANC in 1912, the assumption of the armed struggle in 1961 and the emergence of the United Democratic Front in 1983.

Constitutions that are silent on the needs of the people are not worth the paper they are written on, except for those who want to preserve the pre-1994 status quo.

Constitutions are not fossilised museum documents. They crystallise the dynamism of the journey which a nation has travelled.

At no point in its 100 years of selfless struggle have ANC leaders attracted total acceptance from liberals and right-wing elements.

Both overtly and covertly, even our icon, former president Nelson Mandela, was vilified as a "terrorist" who should rot in jail.

To counterpoise a leadership generation against past leaders has become all too familiar as a tactic to politically undermine the ANC as a movement.

The rationality of changing defective sections of the constitution is attested to by the annual sittings of the joint constitutional review committee in Parliament.

Those who posit the constitution as an inviolate document do appear before this committee from time to time. The main question is whether they can be bold enough not to allow holy cows in their submissions to the committee.

The cherry-picking of issues for presentation to this committee is a false and dishonest discourse.

Constitutional amendments and reviews are not theoretical conjectures but are practical exercises of democratic governance. In the event that there is a need for the review of the constitution, it will not be for the first time that this is done. Six examples, non-seriatim, are sufficient to illuminate my point:

  • From former presidents - Mandela, Thabo Mbeki and Kgalema Motlanthe, our constitution has been amended 16 times, with requisite parliamentary majorities.
  • Only one constitutional amendment is still in parliament during President Jacob Zuma's tenure.

This is the 17th Constitutional Amendment Bill whose objective is to grant more powers to the Constitutional Court to be an apex court and the court of last resort on all matters.

  • The constitutions of the United States, France (the Fifth Republic) Germany (The Basic Law) and India, have been amended 27, 18, 54 and 94 times respectively.

Despite the fact that, as South Africans, we adopted our national constitution in 1996, the DA adopted its own provincial constitution in the Western Cape. Is the silence of this coterie of peace time heroes a sign that they are turning a blind eye to the recreation of a laager for white privileges in the Western Cape?

The ANC released policy discussion documents recently, and we will not shy away from engagement when constitutional issues emanating from these discussion documents arise.

We will not hesitate to approach the courts to give direction where there are perceived or real instances of undermining the national constitution. We will only be doing this to protect our constitution.

Humbled by the respect our constitution commands as a document of reference among reputable jurisdictions, we know very well that its litmus test is not just its accolades, but whether there is enough bite in its bark to change the lives of people for the better.

The world has moved on since 1994, and the ANC policy discussion documents reflect a major paradigm shift to the social and economic transformation of our society. Constitutional reviews to acknowledge these realities can only strengthen our democracy.

  • Radebe, MP, is head of policy of the ANC

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