Ramaphosa's announcement pre-empted constitutional requirements - Peter Leon

A Bill amending the Constitution can only be adopted if there is a meaningful process of public participation

Ramaphosa's EWC announcement may conflict with Constitution's requirement for meaningful public participation process

2 August 2018

President Ramaphosa's announcement late on Tuesday that the African National Congress (ANC) "would finalise a proposed amendment to the Constitution that outlines more clearly the conditions under which expropriation of land without compensation can be effected" is troubling for South Africa as it grapples with record unemployment, low growth, high inflation and declining foreign direct investment.

The ANC's decision appears to pre-empt  the ongoing public participation processes led by the Constitutional Review Committee in Parliament.  It also appears to conflict with the constitutional requirement that a Bill amending the Constitution can only be adopted if there is a  meaningful process of  public participation.  By presenting the ANC's decision as a fait accompli, the governing party is impermissibly pre-empting this process which in itself could lead to constitutional challenges.

The notion that expropriation of land without compensation will remedy inequality and advance economic development conflicts with the views expressed by the International Monetary Fund (IMF)  earlier this week. According to the IMF the government must address policy uncertainty if it wishes to address negative per capita growth, inequality and high levels of unemployment.  Amending the Constitution to make explicit provision for expropriating land without compensation will do exactly the opposite. 

International Monetary Fund IMF Country Report No. 18/246 (South Africa) available here.

Issued by Peter Leon, Partner and Co-Chair for Africa, Herbert Smith Freehills, 2 August 2018