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Problems that emanate from ANC itself

By Ralph Mathekga | 2012-04-10 08:48:54.0

AMONG the things that have sparked fear in society is the proposal to review the powers of the Constitutional Court.

The framing of the problem by the ANC is of great concern. The ANC seems to have the idea that most of the shortfalls in its attempts to effect social and economic change can solely be attributed to constitutional blockages.

Thus the need to amend the Constitution to allow for deeper transformation. This assertion is misleading and smacks of sheer politicking on the part of the ANC.

Judges have questioned the power and actions of the executive branch of government in judgments that have, in some cases, directly probed government policies.

Judges have also been indulgent and went much deeper than desirable when they were called on to assess some conducts of the executive branch of government.

One interesting case is the one involving President Jacob Zuma's decision to appoint Menzi Simelane as national director of public prosecutions. Whenever the judges indulge much deeper and refers to the president's decision as "irrational", they should expect a backlash from the executive.

This is normal and happens in most democratic societies. In the Simelane case the court could have delivered a judgment that effectively invalidates Simelane's appointment without having to delve into Zuma's state of mind when he made the appointment. Too much reasoning would certainly provoke a direct attack on the judiciary, unduly exposing it to political battles.

The problem with the judiciary's approach, as seen in the Simelane case for example, is that it plays into the hands of the executive where the impression is created that the president and cabinet is under some form of philosophical attack by the judges.

The ANC's response has been to create the impression that the party's failure to accelerate transformation can be fully accounted for by the blockades from the judiciary, particularly the Constitutional Court. It is disingenuous of the ANC to blame its policy shortfalls on the Constitution.

The main reason why social and economic transformation has not been accelerated to significant and desirable levels is because of clumsy policies.

Careful observation of some of the cases that were up for review by the judiciary shows shoddy policy work by the ANC. These are the policies that end up being struck down by the courts not because they are undesirable, but rather because they are not presented properly.

Take for example a recent affirmative action case. Some individuals were barred from taking up positions in government because those positions were designated for blacks. This case involved Emil and Martha Oosthuizen, white people, who were denied promotion within the SA Police Service (SAPS) as the posts were meant for the historically disadvantaged.

The judges decided in the case that such a policy as adopted and implemented by SAPS was illogical as it left vacancies unoccupied and the SAPS not fully staffed.

In such cases the judges do not really dismiss the principle that positions can be set aside for previously disadvantaged individuals, but rather on the idea that you cannot keep certain positions vacant because individuals from disadvantaged groups are not yet available to take up those positions even if there are qualified persons who may not have been historically disadvantaged to take up those vacancies.

This demonstrates poor formulation and bad implementation strategy of policy. This also explains why social and economic transformation has been lagging in the country.

An example is the land restitution policy that requires compensation to be paid to white land owners to allow blacks to acquire land.

It is disingenuous of the ANC government to maintain that the reason why land restitution could not be implemented to significant levels has to do solely with the constitutional protection of private property.

The government could have spent R60billion to purchase land for redistribution instead of spending that money on arms. The government failed to get its priorities right.

Further, failure in bringing up efficient utilisation of land that has been redistributed point to ineptitude within government and this cannot be said to be a constitutional problem. The Land Bank, a state-owned institution that is supposed to finance owners of recently acquired land to start farming, has suffered under the jaws of corruption.

The ANC policy discussion documents do raise fundamental questions and set the stage for introspection. But it is important to distinguish between genuine concerns from political posturing intended only at creating an impression that the party still wants to reconnect with its disgruntled constituencies.

As for the judiciary, it is important that judges are circumspect and avoid utterances that might equate their judgments with the views of opposition parties.

The discussion about constitutional amendments would still not really assist the ANC in regaining the moral connection with the majority of its constituencies who grow disgruntled daily.

The truth is that the constitution and the Constitutional Court are not a stumbling block to policy implementation.

At this point, the problem emanates within the ANC itself.

  • Mathekga is a director of Clear Content Research & Consulting