Why the smallest constitutional change is a major risk

Even for many of those who support the idea of giving the government the power to expropriate its citizens’ property without compensation (EWC), meddling with the constitution was once viewed as a step too far.

This is not surprising, as the constitution is a source of national pride, if not national identity. But it is puzzling how complacent many of the same people are about actually fighting a constitutional amendment, now that the ruling party has committed to pushing one through.

This is something that we at the Institute of Race Relations have noticed in our work around property rights. It is both strange and jarring.

Some background is necessary. Ever since the push for EWC began, a vocal chorus of voices have called for a constitutional change on essentially ideological grounds. This approach typically fails to explain why a constitutional change is necessary – it is deeply statist and hostile to private property – but is at least consistent in its goals.

Another perspective has declared that EWC is permissible under the constitution as it exists. None other than President Cyril Ramaphosa asserted in July that ‘there is also a growing body of opinion, by a number of South Africans, that the Constitution as it stands does not impede expropriation of land without compensation.’

On the same occasion, he committed to an amendment. ‘Accordingly,’ he said, ‘the ANC will, through the parliamentary process, finalise a proposed amendment to the Constitution that outlines more clearly the conditions under which expropriation of land without compensation can be affected.’

Seen from a purely pragmatic point of view, changing the constitution should – at least so this argument goes – not make any material difference. But if EWC is well within the state’s right, why should a change be necessary?

Max Du Preez made a reasonably cogent argument about this in late July in a piece entitled ‘Amending the Constitution on land is becoming unavoidable’ in saying ‘the land debate is almost more about history, symbolism, redress, justice and black dignity than about land itself.’ In other words, a constitutional amendment would be a statement about the earnestness with which the ANC and the government view the country’s land politics. It is fundamentally a political and ideological issue.

As a motivation for meddling in the constitution – the Bill of Rights, no less – this is indefensible. The Bill of Rights is a particularly important element of the constitution. It defines the relationship between the individual and the state. It is a keystone set of guarantees of citizenship and liberty.

And thus the complacency we’ve heard from several opinion leaders who – one would think – would know better.

Typically, the importance of the amendment is explained away. The amendment will ‘probably’ be minor and clarificatory. Hardly worth worrying about. Or it is explained away politically. The amendment will give President Ramaphosa a badly needed victory. Master of the ‘long game’ that he is, this is part of his plan to consolidate power and thus protect the constitution, and to steer South Africa towards prosperity.

None of this is convincing. To alter the relationship between the individual and the state, and specifically, to tilt it towards the state, needs to be compellingly and exhaustively justified. Political expediency is not a valid reason for doing so; indeed it sets a dangerous precedent. Having forced a door open, it is unpredictable what might later walk through it.

It was only a few years ago that there was much talk about a media tribunal and about ‘responsible’ journalism. Or the pressing need to protect the ‘dignity’ of the president. Or about an ‘over-emphasis on individual rights’. Or discussion within the ruling party’s trade union allies that envisaged not only abolishing ‘bourgeois private property’, but also abolishing ‘the bourgeoisie (sic) executive, parliamentary and justice system, and replacing them with working class state structures’ – something that would imply overturning the constitutional order.

In more recent years, the legitimacy of the constitutional order as a whole has come under attack. The failure to resolve South Africa’s pressing social issues has too often been laid firmly at the door of the constitution. Erroneously so, as Judith February eloquently argues in her book Turning and Turning.

To placidly concede a constitutional amendment on this issue is to provide oblique legitimation for this destructive narrative. Those of us who value constitutionalism should be wary of surrendering it in apathy.

Terence Corrigan is a project manager at the Institute of Race Relations. Readers are invited to take a stand with the IRR by sending an SMS to 32823 (SMSes cost R1, Ts and Cs apply).