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Has our Constitution reached its expiry date?
Author: Lynne Rippenaar-Moses
Published: 21/05/2017

"Through the research conducted for our book we essentially investigated what the Constitution means to various stakeholders in South Africa and found that there were three threads of meaning – the one is tied to what the constitution represents to South Africans as a set of rules for a democracy, or also a peace accord; the other is tied to what it embodies – a constitutional contract, a social contract or an expedient through which to gain more power for the initial rulers; and the last one is tied to what it stands for, in other words, is it a set of rules with which to uphold the negotiated exchange of concessions and gains agreed upon on in 1996, a set of rules with which to build a national consensus, or rules through which the ruling party gain complete dominance," explains Prof Pierre du Toit from the Political Science Department at Stellenbosch University (SU) and one of the three co-authors of the book, South Africa and the case for Renegotiating the Peace.

The book was published by SUN Press.

Negotiations for South Africa's Constitution started in 1991 with the Conference for a Democratic South Africa (CODESA). After two years, CODESA was replaced by the Multi-Party Negotiating Forum (MPNF), which adopted the interim constitution in 1993. Following Nelson Mandela's inauguration as President in 1994, a Constitutional Assembly (CA) – Parliament today – would spend the next two years finalising the Constitutional Bill that was eventually passed on 11 October 1996 with an 85% majority. Two months later, the Bill was signed into law.

Yet despite a Constitution that is praised the world over and seen to be the legislative foundation of South Africa's democracy, there has been various indications that its foundations remain shaky due to various understandings of what the Constitution is, argues Du Toit and co-authors, Dr Charl Swart from the Centre for Research on Evaluation, Science and Technology (CREST), and Dr Salomé Teuteberg, from Taylor & Francis publishing.

Since 1994 there has been numerous examples of "ongoing discord about what the negotiated transition was about" and "what the negotiated outcome, in the form of the democratic constitution, stood for", write the three academics. These include statements printed in the Sunday Times in 1998 and attributed to Kgalema Motlanthe, the then Secretary General of the ANC.  Motlanthe was quoted as saying that should the ruling party gain a two-third majority in the 1999 election, it "would review the constitutional constraints posed by independent watchdogs such as the Auditor General, the Public Protector and Attorney General" to allow the party to govern "unfettered by constraints". While these statements were later retracted, increased calls to pursue the objectives of the ANC's National Democratic Revolution (NDR) in 2009 saw an uptake in public debates around the purpose of the Constitution. The NDR is a post-apartheid, SACP-generated plan for South Africa consisting of two phases – the transition of political power to the liberation movement followed by measures to gain full control over the economy and preferably move from a more capitalist to socialist system.

In 2011, former President FW de Klerk entered the fray, accusing the ANC's NDR of "seeking to disturb the constitutional balance".

"It became clear and is still clear, that there is a huge difference of opinion on the meaning of the Constitution," says Du Toit. "The debate has now moved to focus more directly on the nature of these negotiated constitutional compromises, on their status and on whether they were core defining aspects of the Constitution, and therefore more or less inviolate, or whether they were merely adjuncts, to be easily discarded. The most obvious current example would be the land question, which centres on the property clause (section 25 of the Bill of Rights)."

These exact sentiments were also conveyed in 2011 in an article by Advocate Ngoako Ramathlodi, a former member of the ANC's National Executive Committee (NEC) who described the concessions made by the party as "fatal" and the Constitution as a "great compromise" which largely favoured white domination.

A year later, former ANC Policy Chief, Jeff Radebe would echo Ramathlodi: "Our first transition embodies a framework and national consensus that may have been appropriate for political emancipation, a political transition, but has proven inadequate and inappropriate for our social and economic transformation phase."

Since then, and at times of various crises within land reform, and the education and mining sectors, there has been calls for a new CODESA. These utterances, argues Du Toit, Swart and Teuteberg, while normal for secure, consolidated democracies, are however problematic for "newly democratised, unconsolidated, post-conflict societies".

"In South Africa, the stakes are very high and rival interpretations of constitutional rules carry implications for policy making that have ramifications for the way in which society and the economy are ordered. Implementing one policy option derived from one particular interpretation of a constitutional rule over another may also carry greater risks of policy failure, with severe costs being incurred, to be borne by citizens.

"We therefore argue in our book that the current unhappiness over policy issues in South Africa, actually has its origin in what was a flawed negotiation process from the outset and that the 85% majority vote of 1996 obscured the divergent interpretations of what the document stood for, represented and embodied for the various parties that participated in the negotiations. The result was that South Africa, from the very start of its democracy, lacked a national consensus on how to go about consolidating democracy, and on how to develop society and the economy."

Based on research conducted by academics Zachary Elkins, Tom Ginsberg and James Melton for their 2009 book, The Endurance of National Constitutions, the median life spans of constitutions were determined to be 19 years on average. The disillusionment that many may feel regarding the country's Constitution is therefore not surprising. The trio determined the life span of constitutions by comparing every democratic constitution in the world, safe for Great Britain, from 1789 to 2005 and by looking at 935 distinct constitutional systems implemented in more than 200 national states. They found that of the 935 constitutions, 746 had been replaced over the years while 189 were still in existence in 2005.

Authors Du Toit, Swart and Teuteberg argue that we can also learn from some notable examples of renegotiation, especially in Malaysia and Lebanon. Over time, says Du Toit, these examples show how longstanding discord over how various stakeholders understand their constitution can lead to chronic policy failure and an eventual national crisis.

"We already see signs of a crisis emerging here, and also how opinion leaders respond. In late 2016, for example, at the height of the state capture crisis, the Nelson Mandela Foundation issued a press statement calling for 'a national convention of stakeholders to begin to reimagine South Africa's future beyond the unsustainable stresses of the moment'."

When crisis conditions become unbearable for the ruling elites and other stakeholders, the authors hope that the road would have been paved for a renegotiation of the meaning of the Constitution rather than a complete overhaul of the Constitution. "This is not a call for a new CODESA, instead it is a call for a process to salvage the very democracy we negotiated in the first place in 1996." 

"The renegotiation of constitutions has taken place in countries like Lebanon, Zimbabwe and Malaysia, but only under conditions of extreme crisis. We may still be able to get away from perceiving what is currently happening in South Africa as a crisis. This is because the elite can still, for example, escape inadequate schooling systems and education in the country by sending their children to private schools," explains Du Toit.

"But, when we reach real conditions of crisis, the same stakeholders who negotiated our Constitution may have to consider returning to the negotiating table to handle the crisis. We do not believe that the Constitution as a whole should ideally be on the agenda, but rather that we should use that opportunity to recalibrate our peace negotiations and reconsider what our Constitution stands for."

However, says Du Toit, for this to happen, it is important to start public discussions about a renegotiation of the Constitution and to make it part of the public debate now. This, he says, is not any different to the climate that allowed for the current Constitution to be negotiated in the first place.

"It's similar to when, in 1978, David Welsh and Frederik Van Zyl Slabbert wrote a book with the title South Africa's Options: Strategies for Sharing Power. They were the ones who for the first time in an academic sense put the case for negotiating a constitution from the apartheid state into the public sphere. Nothing happened at that point, but in 1990, the whole world shifted and the politics of negotiation started. They introduced the concept of the political negotiation to South Africa, so that by the time 1990 rolled around, there was an awareness at various levels that it can be done and that we can reconfigure and re-adapt to what is necessary at the time. That time may arrive for us soon again."

Those interested in purchasing the book, South Africa and the Case for Renegotiating the Peace, can do so by contacting orders@africansunmedia.co.za or by visiting SUN Press' online platform at www.sun-e-shop.co.za