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SA Constitution: Sisulu’s views should be considered

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Picture: – According to Minister Lindiwe Sisulu, as democracy matures, things have to change – and part of this change means the country’s Constitution has to be revisited to establish if it has steered the country in the right direction, the writer says.

By Bheki Mngomezulu

Plenty activities have transpired in South Africa since the advent of democracy in 1994. It is true that giant strides have been made thus far. In the same vein, many things have gone wrong. Even in areas where the country has registered progress, the pace has been slower than anticipated.

This is due to a number of factors – both endogenous (internal) and exogenous (external) factors.

The Interim Constitution of 1993, which was subsequently adopted as the final Constitution in 1996 (Act 108 of 1996) was hailed as one of the most liberal constitutions globally.

Specifically, Chapter 2 which focuses on human rights was deemed to be the most progressive and embracing.

However, despite having such a constitution, questions have been raised as to whether it has taken the country where it is supposed to be. Within this context, calls have been made to revisit certain sections of the constitution. A case in point is Section 25 which talks about “property” – including land ownership which has been deliberated upon extensively and resulted in a motion which did not pass in parliament.

Against this backdrop, the present article looks at some of the recent comments which have been made by Minister of Tourism and NEC member, Lindiwe Sisulu. In the main, Sisulu argues that when the Interim Constitution was drafted and when Codesa talks happened, the political environment was different. The focus was on political parties, not individual candidates. Secondly, the negotiated settlement meant that compromises had to be made, which is a valid point.

Picture: Itumeleng English/African News Agency (ANA) – Tourism Minister and ANC national executive committee member Lindiwe Sisulu.

In her view, as democracy matures, things have to change. Part of this change means that the country’s Constitution has to be revisited with the view to establish if it has steered the country in the right direction. Sisulu also implores the ANC to check if what is happening today is what was anticipated in the 1990s. In the event that this is not the case, something needs to be done with the Constitution, sooner than later.

People have responded differently to Sisulu’s comments. Some dismiss her views outright while others feel that she is doing this because she wants to run for the ANC presidency in December and therefore tries to be politically relevant. My view is that Sisulu’s comments should be ventilated objectively and in context.

Firstly, it is true that the 1993 Interim Constitution was meant to lay the foundation for the first democratic election in 1994. This was a negotiated Constitution whose primary objective was to bind the nation and provide the pillar on which the anticipated democracy was to be anchored.

The Government of National Unity (GNU) which saw FW de Klerk becoming the second Deputy President after Thabo Mbeki was part of this setup. In 1997, De Klerk pulled out of the GNU and other things happened after that – including the conversion of the National Party into the New National Party.

This synopsis above gives the necessary context within which Sisulu’s comments should be assessed.

The reality is that in 2004 the ANC obtained a two-thirds majority with 279 of the 400 seats in the National Assembly. The DA obtained 50 and the IFP managed 28 seats. With this majority, the ANC had the opportunity to shape the Constitution in such a manner that it could address the inequalities of the past.

The ANC squandered this opportunity for various reasons. Some felt that amending the Constitution would cause political instability and see the country regressing. Others felt that it would amount to abuse of power by the ANC. With the benefit of hindsight, the ANC missed an opportunity!

Therefore, Sisulu’s views about the need for constitutional reforms are not misplaced. It is informed by the history that has been captured above, albeit briefly. Secondly, it is a response to the prevailing circumstances in the country and the on-going concern that 28 years into democracy, the country is not where it is supposed to be. It is for this reason that Sisulu’s views should not be summarily dismissed. Instead, certain sections of the Constitution are worth revisiting.

Picture: Photo: Nicholas Rama – The Constitutional Court in Braamfontein, Johannesburg.

Firstly, the issue of traditional leadership was not dealt with properly in the Constitution. Chapter 12 is one of the shortest sections of the Constitution. Section 211 talks about the recognition of the institution and Section 212 talks about the role of traditional leaders. That is all that is covered by the Constitution on traditional leadership. This is despite the fact that traditional leaders played a critical role in the liberation of this country. A constitutional review would provide space to have a re-look at this Chapter.

Chapter 7 of the Constitution focuses on Local Government. At the time when this chapter was crafted, the issue of independent candidates was never contemplated. When the court ruled that South Africa’s Electoral Act is in contravention of the Constitution, it tacitly implored the country to have a relook at the country’s Constitution so that it could respond to the issues that are of concern to society.

Another contextual issue worth reflecting on is that since 1994, the ANC has been enjoying more support in each election. However, in recent elections, the ANC has been losing support for various reasons. Secondly, since 1994, new political actors have entered the space – both in the form of new political parties and independent candidates.

This means that any constitutional review or amendment would no longer have the ANC as the focal point. It would have to be different from an ANC policy document. On the contrary, it would have to be a national document which considers the interests of the wider South African society – both those who are in politics as well as those who have no political affiliation.

Another point implicit in Sisulu’s comments is that the Constitution was anchored on the Freedom Charter, adopted in 1955 – following the Defiance Campaign which began in 1952. The latter was a response to the adoption of apartheid as a government policy from 1948 when Dr DF Malan’s National Party emerged victorious in the election which was held in that year.

There is a two-pronged question which arises from the statement above. The first part is: to what extent are the principles of the 1955 Freedom Charter still relevant in the present political context? The second part is: How do we craft the Constitution in such a manner that we consider the country’s past inequalities while also being mindful of the need to promote social cohesion?

As the country prepares for the general election in 2024, Sisulu’s comments force us a nation to reflect on the current Constitution and ask ourselves serious questions on whether the Constitution is durable and whether it will assist the country in its social cohesion agenda.

Any attempt to reduce Sisulu’s comments to her intention to emerge victorious at the upcoming ANC conference in December would blind us as a nation to the broader context within which we should ventilate her views.

As a matter of principle, constitutional review (and/or constitutional amendment) is not an antithesis of or a nemesis to democracy. However, this has to be done within the confines of the law. As things stand, South Africa needs a two-thirds majority in order to review the Constitution. Given the political egos demonstrated by political parties in Parliament, obtaining this required threshold does not seem possible. The failed Section 25 Bill is one typical example.

Entrusting politicians with our lives as a nation seems to be losing value. Most of them use the power accorded to them for self-aggrandisement. Perhaps what the country needs at this moment is a referendum wherein the general populace would have a voice. Through such a mechanism, change would come from below.

What is clear from the discussion on Sisulu’s comments is that South Africa’s Constitution was drafted in a rush with the view to have something in place to guide the first democratic election. Secondly, it was crafted as a negotiated settlement; it was part of the Codesa talks. Thirdly, the context then and the context now are two different things.

File picture: African News Agency (ANA) – A full bench of Judges sitting at the Constitutional Court.

Consequently, the time is ripe for the country to revisit its Constitution and check if it is steering the country in the right direction. If the answer is in the affirmative, then the country can confirm that we are on the right track and keep the Constitution as it is.

Should the answer be in the negative, this would necessitate that the current Constitution is reviewed to ensure that it remains relevant.

Therefore, while there might be sections in Sisulu’s comments which are debatable, the gist of her argument remains relevant. The issues she raises transcend political interests. Instead of throwing the baby out with the bathwater, it is important to dissect Sisulu’s comments, take what is useful from them and discard whatever we feel is not going to take the country forward. It is irrefutable that the Constitution should be revisited to establish its relevance.

Bheki Mngomezulu is Professor of Politics and International Relations at the University of the Western Cape

This article was exclusively written for The African. To republish, see terms and conditions.