When a country accepts a new constitution, like South Africa did in 1994, there is general belief that it will be long lasting. The very opposite is true. The book called The Endurance of National Constitutions (2009), co-authored by Zachary Elkins, Tom Ginsberg and James Melton, sets out to establish what they call “the life cycle of constitutions”. After studying all the democratic constitutions in the world between 1789 and 2005 the authors found that the median life span of constitutions is 19 years.
South African constitutions in the modern era have enjoyed ever shorter life spans. The Union Constitution of 1909 lasted 52 years before it made way for the Republican Constitution of 1961 that endured for little more than 20 years before making room for the Tricameral Constitution of 1983. The latter was replaced ten years later by the interim constitution of 1994, and that was swept aside two years later by the current constitution.
A new study has just been published that examines the chances of the existing constitution surviving the ever more serious political crises that South Africa is facing. Called South Africa and the Case for Renegotiating the Peace, the book is co-authored by Pierre du Toit, Charl Swart and Salome Teuteberg (Sun Press, 2016).
The book’s range and insights are impressive. It deals with four important questions: First, why has the constitution of 1996 failed to establish any consensus on how to resolve our conflicts? The very opposite has happened. Most of the Article 9 institutions have been hollowed out, the President seems to have no understanding of what a modern democracy means, Parliament has been degraded, and the Constitutional Court now deals with issues in a way that goes well beyond the role envisaged by the drafters of the constitution. One can expect a much more concerted effort on the part of the executive to pack the bench in order to eliminate what it clearly perceives to be a major obstacle to some of its more devious designs.
Secondly, the book argues that the flawed constitution has produced chronic policy failures that are becoming increasingly costly. Thirdly, it rejects the idea of a new Codesa authorized to write a new constitution. Instead it is a plea for the main stakeholders to reflect on what our constitution really means in order to make it a document that one can look up to. Fourthly it reflects on a few case studies where a re-negotiated settlement brought about a sounder basis for economic growth and political stability. Among them the most notable are India and Malaysia.
Going back to the drafting of the current constitution one is perplexed by the near unanimous support in the National Party caucus in the mid-1990s for the proposed constitution. The NP was the second biggest party and the one which was supported by most taxpayers. It seems that the NP confidently accepted that it would play a major role in a multi-party government for the foreseeable future despite the absence of any reference to power-sharing in the final constitution.
It soon turned out that the ANC, particularly those leaders who spent many years in exile, wanted to get rid of the NP ministers in the government of national unity as soon as possible. But there was an even bigger problem. There was a sharp disagreement between the ANC and NP about the true nature of the constitution in whose adoption they both played a leading role
South Africa and the Case for Renegotiating the Peace argues that the constitution’s main flaw is that it is far too flexible. Pierre du Toit pointed this out as early as 2001 and it is also one of the main arguments in the 2016 book. In the constitutional negotiations of 1994-1996 the ANC and the NP reached what was called ‘sufficient consensus’. This was achieved primarily by incorporating conflicting demands and by deferring their resolution to the post-apartheid regime. There even was a dispute about what was meant by a negotiated constitution.
The NP thought that the constitution was like a proper binding contract similar to one concluded between firms in the corporate world: a mutually beneficial and stable settlement that could only be changed after mutual agreement had been reached by the contracting parties. The ANC, by contrast, fought a classic ‘war of position’ in which each concession it extracted from the the NP government became the platform for the next assault in what it called the ‘national democratic revolution.’ The issue of the labour market, for instance, was addressed in the constitution by incorporating both the principle of merit and the need for affirmative action to redress the ‘imbalances’ of the past. It is generally agreed that in subsequent years the ANC government increasingly stressed the latter.
In 2007 F.W. de Klerk and Pik Botha, by then retired from politics, threw their weight behind the trade union Solidarity in its fight to oppose unfair discrimination in the job market. In July 2007 Rapport carried a bold front-page headline ‘The ANC lied to us’ over a report of speech by Pik Botha on affirmative action in which he said: ‘If the ANC had demanded that the provisions of the Employment Equity Act, and in particular the way it was implemented, be incorporated in the new constitution, such a constitution would not have been agreed to.’
There is also a profound disagreement about whether the constitution puts distinct limits on the extent of redistribution away from those presently owning the means of production, to use the radical term. Cyril Ramaphosa believes that the equality clause allows for the National Democratic Revolution, which many in the ANC use as the code word for socialism. De Klerk vehemently insists that the constitution does not allow for anything like the NDR.
These sharp differences, notwithstanding, there has been some agreement about the broad parameters in which the system under majority rule would function. The best description of that is the one of David Welsh, which is also the one accepted by the authors of Renegotiating the Peace. In terms of this, the ANC would enjoy relatively unfettered majority rule subject to certain constitutional constraints. Whites would retain the domination of the economy subject to very important qualifications, all aimed at reducing inequalities.
The trade-off was never formally spelled out or directly challenged in the first ten years. As long as the ANC leadership remained secure in its electoral domination and as long as the economy was growing steadily there was little reason to fear the ANC would violate the trade-off. But as Du Toit and his fellow authors make clear there also exists very little in that reinforces this trade-off. The electoral system of Proportional Representation on a closed list is tailor-made for race-baiting leaders, making extravagant promises of black economic advancement, and issuing threats of seizing farms without compensation. President Zuma has used this system to entrench himself in power regardless of the charges against him.
The question of whether whites are accepted as full fellow-citizens with the right to criticise corruption in government ranks has remained unresolved. There were, however, dangerous signs right from the beginning. At the ANC’s national conference held in 1997 in Mafikeng President Nelson Mandela accused the ‘white’ opposition parties of propagating ‘a reactionary, dangerous and opportunist position’ and of thinking that they had ‘a democratic obligation merely to discredit the ruling power, so that they may gain power after the next elections.’
By 2007 South Africa’s democracy had settled down however. Under the stewardship of Mbeki and Minister of Finance Trevor Manuel the economy was growing at a steady rate. The government had also been careful to avoid over-expenditure after coming to power, a mistake made by many post-colonial African governments. The needs of the poorest section were addressed by the expanding social grants system. A black middle class had established itself. South Africa seemed, to many observers, to have escaped the misguided experiments that ruined the economies of many newly independent states in Africa.
The economic crisis that hit the world in 2007, together with the replacement of Mbeki and the subsequent political marginalisation of Manuel, undermined the ANC leadership’s resolve to maintain fiscal prudence and refrain from radical left-wing policies. Jacob Zuma's troubled presidency and the ANC government’s fiscal and economic difficulties, has led to the completion of the final stage of the NDR (‘the return of the land and wealth of the country to the people’) being reasserted as an urgent priority.
At the same time the whites’ weakening demographic base left them much more vulnerable, particularly outside the cities. Between 1994 and 2015 the white population remained stagnant at between 4 and 4.5 million, while the black population during this period rose by nearly 50 percent from 30 to 44 million.
In many ways the Zuma presidency has resembled the kind of government that is dissected in two authoritative works on Africa. Both appeared in the late 1990s. The first is The Criminalisation of the State in Africa by Francois Bayart, Stephen Ellis and Beatrice Hibou; the other is Africa Works: Disorder as a Political Instrument by Patrice Chabal and Jean-Pascal Daloz. A review of The Economist of 7 August 1999, sums up the common theme of both books. Both conclude that the absence concept of citizenship constituted the essence of those states in Africa that failed or was in the process of doing so is. There is in these states no sense of civic responsibility towards its fellow citizens, except that which is showed towards the “patriotic bourgeoisie”, who depends on government for patronage. The government subverts formal institutions by introducing a personal, patrimonial system.
The Zuma administration undoubtedly resembles this kind of system. It is being opposed by a vibrant civil society and parliamentary opposition. The courts are the only institution that mediate between the autocratic patrimonial system and the democratic organs of civil society. But this has put a heavy burden on the judiciary.
Renegotiating the piece states that never in the history of South Africa has the relationship between the executive and judiciary been as acrimonious. “South Africa is at the crossroads between partisan government rule and adherence to the tenets of a liberal democratic regime” (p.79) In the meantime the higher courts are increasingly being asked to intervene issues in ways that the drafters of the constitution never envisaged.
The book is a call for political leaders across the board to come together to decide how to resolve the ambiguities of constitution. It is a call to salvage our democracy by clarifying what the pillars of the 1996 constitution are, what it stands for, and what kind of future it authorises South Africa to try to construct.
It is not as if this is an issue that can be left for leisurely discussion. The horrifying events at Coligny showed how far irresponsible politicians are prepared to go to rally blacks to ensure the Zuma faction retains the upper hand and diverts the attention of a population angry over a lack of service delivery. After a 16-year-old child, Matlhomola Mosweu, died in disputed circumstances after being caught by two farmers stealing sunflowers a crowd entered the town and burned or sacked several houses and businesses belonging to whites and Indians. The mob targeted not only ‘white property’ but also all the spaza shops of foreigners.
In the absence of the police force, which had been deployed to other towns in order to deal with service delivery protests, the residents were defenceless. Community leaders responded calmly to serious threats to their lives and property, thereby avoiding an escalation of the conflict. Flip Buys of the Solidarity movement rushed to the scene from Johannesburg. He immediately warned off some whites threatening to use their guns and did everything to persuade the white community to remain calm.
In an interview on Kyknet on the night of 10 May Rian Malan, a widely respected journalist sent out by News24 to cover the violence at Coligny, paid tribute to the role Buys played to forestall a violent response. In his article “Coligny: The Shape of Things to Come” Malan tells the story of the funeral service for Mosweu held in a giant tent outside Coligny’s shack settlement. The keynote speaker was Supra Mahumapelo, ANC premier of the North West and an important ally of President Jacob Zuma. Malan writes:
“According to a Twitter feed from News24 reporter Jeanette Chabalala, Mahumapelo began by stating there was “no confusion” about at whose hands Mosweu had died. “This was odd. On Friday afternoon, the magistrate presiding over the bail hearing indicated that aspects of the evidence against the accused were confusing… The police investigation was still in its infancy; key witnesses had yet to be traced, forensic evidence was lacking and the cause of death remained unknown.
“But Mahumapelo was immune to doubt. “Had they caught a white child, I don’t think they would have done it,” he thundered. “I have a problem with white superiority in this country. White people continue to control the land and the banks. We are going to call all the white people and tell them they are visitors in this country.” He was speaking from a podium recently vacated by Mxolisi Bomvana of teachers’ union Sadtu, the largest trade union still loyal to Jacob Zuma’s ANC. His message: “I don’t think what happened is the will of God. It is the racists of our time. (Mosweu) is gone because a racist decided to kill a black person.”
“Can we pause here to consider the significance of what you have just read? When the troubles in Coligny began, we were told that they were a “spontaneous” expression of the people’s righteous anger. Maybe so, but what we saw at the funeral was something else entirely. Mahumapelo and his comrades are ranking members of Jacob Zuma’s faction. They could have condemned the violence. They could have apologised to the 53 Bangladeshis, Somalis and Ethiopians who lost their livelihoods.
They could have called for calm, and advised their followers to delay further protests until the facts were in. Instead, they chose to further inflame racial passions and collectively endorse a second round of protests in a town already smashed by rioting. I doubt this was an emotional error. To me, it looked like a coldly logical part of the Zuma administration’s survival strategy, which rests largely on scapegoating whites in the manner pioneered by Mugabe, endorsed in 2010 by Malema and recently adapted into Zuma’s plans for ‘radical economic transformation’.”
In the more placid circumstances of the World Economic Forum Africa meeting held in the first week of May another disturbing development took place. In an article for the Daily Maverick Stephen Grootes, an experienced journalist, wrote about the exchange between himself and Dr. Ben Ngubane, chairman of Eskom. Grootes had questioned Ngubane about the Eskom board’s failure to provisionally suspend the acting CEO, Matshela Koko, after it was revealed that the corporation had handed a huge contract to his stepdaughter while she was still living in his house. After Grootes asked if there was anything he would like to add an angry Ngubane replied:
“This country was based on robbery and theft. Black people were robbed of their land. If the country is founded on lack of morality as this country was, through so many years, through apartheid and colonialism, let’s be careful how we characterise black people and black-led institutions.”
The message Ngubane then delivered, Grootes writes, was this: “People like you have to be careful, you will raise the temperature in this country if you are not careful…. It wasn’t a threat, I think, so much at me, but certainly I got the feeling he was referring to two of my identities, one as a journalist, and the other you can probably guess.”
We have always thought South Africa can never go the way of Zimbabwe. Perhaps we should think again. The Case for Renegotiating the Peace, together the events at Coligny, constitute is a timely wake-up call.
Hermann Giliomee’s Historian: An Autobiography (Tafelberg) has recently been published.