Lawfare: Why blaming the Constitution for SA's problems is not the answer
In addition to the consequences of the deepening phenomenonof lawfare, another set of challenges to the constitutional project hasemerged, namely the fact the Constitution itself has become an object ofcriticism by those who see it as an obstacle to transformation.
This thinking that the Constitution prevents social andeconomic change, particularly as it is a Eurocentric document, is unsurprising,given the slow pace of economic transformation (radical or otherwise) thecountry has seen over the past two decades. Some of the content of this line ofattack has been around from the inception of the Constitution, but the volumeand intensity of this form of discourse has increased since 2008.
In responding to this criticism, it is wise to recall thetext of the Republic of South Africa Constitution Act of 1996, which boldlyproclaims that the country aspires to be a non-racial, non-sexist society basedon the core principles of freedom, dignity and equality. To achieve this, wewere to destroy the myth of racialised cultural and economic superiority thatprevented us from claiming a fresh identity as South Africans. As Cameroonianphilosopher Achille Mbembe has argued, democracy was dependent on thisconstruction. If we could not break the myth and replace it with a new form ofcitizenship, the very enterprise set out in the Constitution was fatallydoomed.
Now, however, there is a growing chorus claiming that theConstitution was employed by recalcitrant whites to subvert majority rule. Thismode of attack, located at the margins of politics back in 2008, is nowassuming increasing importance in the national discourse. It sees theConstitution as a compromise aimed at preserving so-called white monopolycapital, and casts Mandela and his team of negotiators as sell-outs of theirpeople, especially on the question of land redistribution and apartheidrestitution.
The argument is that the constitutional promise preservesthe ill-gotten gains obtained during apartheid. The slow, almost non-existent,pace of meaningful land reform in particular has proved to be fertile groundfor casting the Constitution as the obstacle or, worse, the mechanism to retainapartheid-era economic and ownership structures of land and other productiveassets.
What is most apparent in the ongoing debate regarding landreform is that the Constitution is now labelled as part of the problem. We saythat it is rather the seeming absence of a coherent land policy implementedwith determination and expedition that is the source of the present crisis inland restitution.
Assume away the property clause, Section 25 of theConstitution, and we would be in the same factual position. The land reformproblem is political, not constitutional. The same observation is applicable tothe stark patterns of inequality, the grinding poverty encountered by millionsand the structural racism that continues to blight this land – unaddressed bygovernment. These are not the products of the Constitution.
Even ignoring the deployment of the hollow Bell Pottinger catchphrase'white monopoly capital', spouted as a response to the nation's vocal rejectionof state capture in South Africa, the government's failure to address thedisgraceful material conditions of poverty and landlessness in this mostunequal of societies is evidence of the failure of the ANC government to fullyrealise the transformation promised in the Constitution.
An academic version of the line of argument that theConstitution is the problem has been developed by University of Pretoriaacademic Joel Modiri. In a series of articles, Modiri argues that, while theadvent of a new constitutional order did alter the moral and politicalfoundation of the country, there can be no guarantee that the Constitution willnot reproduce a formalist and conservative legal culture. It is also based uponthe assumption that Western liberal constitutionalism is superior to Africanalternatives. Thus, the South African Constitution represents a Western (andhence colonial) order of legal knowledge that 'suppresses and marginalisesindigenous African ways of knowing and doing law'. In similar fashion, TshepoMadlingozi claims that the call for a supreme Constitution and a Bill of Rightscame overwhelmingly from whites 'with a view to keeping the main edifice of theanti-black bifurcated policy intact'.
These critical voices call seriously into question thepossibilities of which many spoke when the Constitution passed into law; hencethey require a careful response. In fact these criticisms necessitate tworelated replies: to the attack on the failure to transform the economicstructure inherited from apartheid and to the contention that, far from beingthe poster child of progressive constitutionalism, the South African text iswholly inappropriate for an African country.
Is the Constitution a Eurocentric imposition or a uniquelySouth African achievement? Will it inevitably retard the structural changesneeded to achieve a substantive model of democracy, as claimed by itsantagonists and energetically denied by its proponents? These are questionsthat now bedevil the political and legal debate.
In summary, we now need to revisit the role of the judiciaryin a constitutional democracy grounded in South African society. But we cannotdo this without an answer to a prior question: can our Constitution promotesubstantive structural change to achieve its proclaimed vision, a non-racial,non-sexist democracy based on freedom, dignity and equality for all?
Just as economic sanctions hastened the end of apartheid,can and will downgrades to junk status, coupled with years of stagnant growthand debilitating youth unemployment, herald an irresistible opposition toconstitutional democracy? Is it then correct to blame the Constitution for ourrecession? Our unemployment? Our deindustrialisation? Our failing schools? Ourinadequate healthcare system? We say not.
That redress of the past and adequate protection for thoseon the margins have not taken place is undeniable. We would argue that theblame for this political, or indeed legal, failure cannot be placed on theConstitution. On the contrary, read in at least one coherent manner, theConstitution seeks a society in which democracy means far more than a formaladherence to the economic or social status quo.
This reading resists the idea that the Constitution, nomatter from where particular words or phrases in the text were borrowed, willreproduce a society wrenched from its African roots. To repeat, for us, theanimating constitutional idea was, and should remain, the creation of a societybased upon a new South African identity, which eschews the claim of whitesuperiority in any form, or the concomitant idea that only Western ideas are tobe employed to fashion the new society.
We need to admit that the conservative legal culturebequeathed to us by our colonial past and a regrettable poverty of legalimagination in too many cases have contributed to the lack of transformation ofkey legal rules, which continues to be an obstacle to substantive economic andsocial change. This must then lead to a discussion of the role of the law andcourts in the attainment of this objective.
* This is an extract taken from Lawfare: Judging Politics in South Africa by Michelle le Roux and Dennis Davis, published by Jonathan Ball Publishers.