Re-negotiating the peace in a time of crisis

Pierre du Toit says despite SA's predicament there is still no sense of ideological exhaustion within the ANC

“So be it”. With this callous one-liner Julius Malema dismissed the danger of the prospect of a deepening racial polarization in Senekal and in our country overall leading to civil war. Luckily the confrontation in Senekal also elicited a different voice. Reflecting on the events Motsepe Matlala of the National African Farmer’s Union (NAFU) called for a new CODESA for the agriculture sector of the country.

This is not the first time this call has been made. It has been a persistent theme of our politics for the last fifteen years at least, invariably in response to one or other sharp confrontation that just even hints at the imminent breakdown of our constitutional order.

Why are such drastic conclusions drawn so quickly, and repeatedly so? Our view is that at root of this deep-seated unease is the fact that from the very outset, the 1996 Constitution has meant fundamentally different things to different stakeholders.

Firstly, there is a longstanding difference of opinion about what the constitution represents, both in terms of process and outcome. For some negotiators it was only a set of rules and procedures outlining democratic institutions that were arrived at.

For others, it represented a negotiated outcome which in essence was a peace process, with the constitution itself being the Peace Accord. For yet others, especially in the ANC/SACP camp it was merely a point on a longer journey, an important but temporary platform that was arrived at in the larger “war of position”.

Secondly, stakeholders differ about what the constitutional text embodies. For some it is a constitutional contract, where negotiators recorded their respective negotiated gains and concessions, arriving at a mutually agreed outcome. Others see it as an incipient social contract, where the compromise that is written into the text is (or was) intended to shape a process of ever more deeply entrenched continuous conflict resolution with a view to creating a national convergence on basic values.

A third view again from the ANC/SACP ranks, was (and is) that the text alone can be stripped of any previously intended significance and be treated as merely a device for capturing and securing power, to be used for further gains.

The last basic difference of interpretation is about what the constitution stands for, about what it authorises South Africans to achieve, or at least, to strive for. One view holds that the contract, as agreed on before 1996, has to be honoured in its essence, as it captures the “give-and-take” of the negotiations then, and apart from minor amendments cannot be changed as it will violate the fairness of the initial settlement. Social contractarians are more ambitious, and argue for the constitutional process (which is enabled by the textual prescriptions) to become part and parcel of the political culture of our society, so that it can shape our future politics towards mutual accommodation and consensus seeking.

In sharp contrast is the last view, which reads no authorization in the constitution itself, but considers it to be instrumental to and subservient to the larger project of establishing the hegemony of the ANC, and the execution of the National Democratic Revolution (NDR).

We can see these divergent interpretations on display in the debates about amending Section 25, the property clause. Contractarians consider this to be one of the cornerstones of the negotiated contract, and any substantive change , in their view would upend the delicate balance achieved prior to 1996, which achieved a more or less fair exchange of mutual concessions and gains agreed to at the negotiating table.

Social contractarians see in section 25 a description of a process of conflict resolution, which they would at least see to be upheld, but preferably, broadened. This is in striking contrast to the stance of proponents of the NDR, who see in section 25 a huge obstacle to their ambitions, urgently in need of being moved out of the way.

With such strongly divergent positions being sustained, doubt about the true intentions of rivals emerge, and all parties end up reverting to the default position, which is to take disputes of interpretation to third party intervention via the Constitutional Court.

Only crisis conditions (either through external or internal conditions, or both) can induce a process to resolve such an impasse through a re-negotiation of the constitutional order. But only then if the crisis results in firstly, a comprehensive ideological disillusionment within the ranks of the ruling elite. They need to experience the sense that their entire ideological repertoire of policy options have run out, and new ground has to be found.

Secondly, the crisis needs to induce a major shift within the political landscape of the country, in the sense that power bases become more fluid, new contenders emerge and new alliances become viable.

Both these conditions applied to the National Party regime towards the end of the 1980s. They had tried every configuration of constitutional options within their apartheid frame of thought and all had failed. And then the end of the Cold War shifted immense pressure from the West onto them (and on the ANC) to enter negotiations for a democratic constitution.

We are certainly now in a political and economic crisis that is unprecedented in our modern history. According to the 2020 Eunomix report, based on a data analysis that precedes the Covid-19 pandemic and its consequences, we are already set on a trend ending in becoming a failed state by 2030.

The ingredients of this trend are those of a decade of state capture, corruption, and failing state capacity due to amongst others, cadre deployment policy, as well as Affirmative Action (AA) and black economic empowerment (BEE), restrictive labour policies and the dilution of property rights. State capacity has been further weakened by chronic failures at Sate Owned Enterprises (SOE) and an urge to centralize power in the state. Any possibility of becoming a developmental state has been squandered and lost.

Compounding this downward trajectory has been the impact of the external factor of Covid-19, which in turn precipitated the internal response of a severe lockdown, with its crippling effect of a loss of 2.2 million jobs in the second quarter alone, with more yet to come. If any calamity could inspire new thinking this has to be it.

Yet there is still no sense of ideological exhaustion within the ANC, not even one of mild fatigue. In presenting his Economic Reconstruction and Recovery Plan as a policy remedy for the economic devastation of the lockdown, President Ramaphosa coolly remained within the rigid parameters set by the ideology of the NDR. He presented a relief package intended to galvanise investment and achieve sustained growth of 3% per year over the next decade, instead of state failure by 2030 as forecast by Eunomix.

And all of this, according to Ramaphosa’s plan, is to be achieved without touching the very ideological anchors which dragged us down to where we are now in the first place: cadre policy, AA, BEE, collapsing SOE’s, and the compulsion to extend the power of the state. The plan, in fact extends the reach of the state, with the National Command Council (take note!) as its ultimate overseer. Is there any deeper form of crisis that can shift the ANC’s thinking: hyperinflation, a Rand/Dollar exchange rate of 40:1, unemployment above 60 percent, or all of the above?

If not then we have to consider the remaining positive impact of crisis conditions that can move stakeholders towards re-negotiating the meaning (if not the text) of our constitution: a deep shift in power.

If our ruling elites are unable to sense the costs of this crisis, then ordinary citizens with voting power may well be able to do so, and to recalculate their priorities accordingly. The first opportunity to do so is in the upcoming 2021 Local Government elections, followed in 2024 by the next National and Provincial Elections, this time with a new electoral system, the details of which are still unknown.

Opportunities for re-negotiating may arise rapidly through a confluence of forces as was the case with South Africa in the late 1980s. If not taken, such ripe moments may fade as quickly as they arose, at a heavy cost to societies. The cases of Malaysia and Zimbabwe are instructive.

Malaysia’s democracy is built on an ethnic bargain securing the rights of ethnic Malayan and Chinese communities. This bargain collapsed with lethal anti-Chinese riots after the election of 1969. The moderate ruling alliance of Malayan/Chinese parties immediately declared a State of Emergency, suspended the constitution and dissolved Parliament. A new unelected council of influentials re-negotiated the constitution, which was re-inaugurated in 1971, without many textual changes, but with the ethnic bargain now elevated to the foundational element of the constitution.

Zimbabwe was ripe for re-negotiation in 2001 after President Mugabe lost the referendum on changing the constitution. Instead he went on a rampage against his people, which included ethnic cleansing of white farmers. The constitution was duly re-negotiated in 2013, but by then the modern sector of the economy had collapsed and disappeared.

Today Malaysia is a successful developmental state, but Zimbabweans continue to live in destitution. We need not go that way too.

Pierre du Toit is Emeritus Professor in the Department of Political Science at Stellenbosch University. He is the co-author (with Charl Swart and Salome Teuteberg) of South Africa and the Case for Renegotiating the Peace, Sun Press, 2016.