Is South Africas Constitution in Danger?

Speech by Arthur Chaskalson on Thursday 10 May 2012 at Iziko Museums Centre for Conflict Resolution. We have been asked tonight to engage in a public dialogue on the subject, Is South Africas Constitution in Danger. As formulated, it is an open question, taking neither one side nor the other, but the fact that the question has been asked is significant. It is not the sort of question that would have been asked five or ten years ago, possibly even one or two years ago, so why now? has happened to give rise to such a question? Well, a number of things have happened. There has been the Protection of State Information Bill, which contemplates harsh penalties for the disclosure of classified information, a proposal to establish a media tribunal to exercise some form of control over the media, hostile and at times derogatory comments by some members of the tripartite alliance about the judiciary, threats to undertake an investigation to assess the performance of the Constitutional Court, and to reconsider its powers, and assertions by some prominent members of the tripartite alliance that the Constitution is an obstacle to transformation of our society, preventing effective redress of the legacy of apartheid. At the same time there appears to be a growing influence of certain members of the security establishment, and reports of the involvement of some of them in party political disputes.
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What

This is happening in a tense political atmosphere in which there are frequent demonstrations, often turning to violence, about poor or inadequate service delivery, allegations of corruption on the part of persons holding important positions in the administration, including within the police and security forces, court challenges to appointments of persons to high offices in the State made by the President, suggestions of serious differences within the leadership of the governing party, and a growing culture of intolerance in which abusive responses are made to those who criticise the government or its leaders.

In this overheated political environment, in which security concerns have at times been emphasised, and courts and the media, watchdogs in a democracy, have been excoriated, City Press carried a story in its edition of 4 March this year with a headline saying the ANC wants a new Constitution. It said that it was in possession of draft policy documents that were to be released the following day by the ANC to its branches in preparation for its June policy conference. According to City Press one of the documents, entitled The

second transition, dealt with the 1996 Constitution describing it as having been appropriate for a political transition, which it referred to as the first transition, but had proved to be inadequate and even inappropriate for the second transition, which was a phase of social and economic transformation. Quoting
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from the document, it said that the ANC wanted dramatic changes to be made to the Constitution, including scrapping the sunset clauses which related primarily to land and property ownership, changing the mandate of the Reserve Bank and the relationship between the powers of the different spheres of government. The reference in the document to sunset clauses attracted particular attention. There was only one sunset clause in the Constitution, and the sun has long set upon it. It was the clause that made provision for a government of national unity for five years which ceased to have effect even before it expired, because of the premature withdrawal of the National party from the cabinet. All other provisions of the Constitution were entrenched and subject to amendment only in accordance with the provisions of the Constitution.

The City Press report became the subject of widespread comment in the media and the political arena. It was seen by some to give substance to earlier reports in the media, attributed to some leaders of the tripartite alliance, which have been understood as blaming the lack of transformation of our society, partly on the Constitution and the courts. For instance, reports of comments said to have been made to the following effect. By a Deputy Minister: [with the adoption of the new Constitution] power was systematically taken out of the legislature and the executive to curtail efforts and initiatives aimed at inducing fundamental changes. In this way, elections
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would be regular rituals handing empty victories to the ruling party.1 By the Chief Whip: We are becoming a one party state led by unelected judges.2 By the President: Policy is a matter for government and not for the Courts, 3 and subsequently a statement attributed to him that it is necessary to review the powers of the Constitutional Court.4 The Constitutional Court is guardian of the Constitution and comments such as these have been understood by some to suggest that the powers of the Court to uphold and protect the Constitution might be eroded.

On the following day, 5 March 2012, as City Press had forecast, the ANC released a series of documents described as draft discussion documents which were posted on its website5 and were the subject of a media conference addressed by the Minister of Justice and Constitutional development who heads the ANCs policy subcommittee. The documents did not, however, contain references to the scrapping of sunset clauses or the need to review the Constitution.

Article by Ngoako Ramathlodin published in Tinmes Live on 1 September 2011, available at http://www.timeslive.co.za/opinion/commentary/2011/09/01/the-big-read-anc-s-fatal-concessions, last accessed 8 May 2012
2 3

In Rapport of 18 February 2012 Address by the President at the Access to Justice Conference in Johannesburg in 2011. 4 Interview of the President by Independent Newspapers on 12 February 2012 5 www.anc.org.za/events.php?2012 last accessed 8 may 2012

According to a subsequent report in the Sunday Times,6 these statements had appeared in earlier drafts of the document but had been omitted from the final draft. Earlier drafts are not available on the ANC website, but this may be the explanation for the difference between the documents in the possession of City Press, and the draft discussion documents that were released to the media and posted on the website.

What this episode suggested is that some members of the ANC, sufficiently senior to have a role in the drafting of policy documents, consider some of the clause of the Constitution to be temporary and not permanent provisions. The ANC has, however, consistently denied that it has any intention of departing from the core provisions of the Constitution. In a statement on the

transformation of the judicial system and the role of the judiciary made on 28 February this year, 4 days before the City Press report, the Minister of Justice and Constitutional Development, who as I have mentioned, is head of the policy sub-committee of the ANCs national executive, sought to allay fears that the ANC wants to revoke fundamental rights and freedoms.7 Responding to what he described as irresponsible commentary he reaffirmed the ANCs commitment to the Constitution, saying:
6 7

ANC Holy Cows Emerge, Times Live, 7 March 2012 Media statement by the Minister of Justice and Constitutional Development on the transformation of the judicial system, Cape Town, 28 February 2012 available at www.info.gov.za/.../Dynamic action, last accessed 8 May 2012

The Constitution is an embodiment of the values that the ANC stood and fought for. The ANC-led government will defend these values at all costs, including the independence of the judiciary and the rule of law which are the bedrock of our constitutional democracy.

This is consistent with the pride that the ANC has always taken in its role in the drafting of the Constitution. Later, in an article responding to the City Press headline that the ANC wants a new Constitution, Mr Cyril Ramaphosa who chaired the Constitutional Assembly, and is a member of the ANCs National Executive Committee said:8

The ANC does not want a new Constitution. It is not contemplating dramatic changes to the Constitution. The City Press headline is

simply untrue. The ANC was the majority party in the Constitutional Assembly that drafted our Constitution together with other political parties. The principles enshrined in our Constitution reflect positions adopted by the ANC over many decades . . . The ANC has no need, no desire and no interest in abandoning the constitutional principles for

City Press of 11 March 2012

which it waged a relentless struggle and for which so many people sacrificed so much. These statements affirm the commitment of the ANC to the core values of the Constitution. These values are entrenched in the first section of the Constitution and any amendment of them requires a supporting vote of at least 75% of all the members of National Assembly.9 They bear repetition:

The Republic of South Africa is one, sovereign, democratic state founded on the following values: a. Human dignity, the achievement of equality and the advancement of human rights and freedoms. b. Non-racialism and non-sexism. c. Supremacy of the constitution and the rule of law. d. Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness

Section74(1)(a) of the Constitution.

Given this, and entrenched as they are in the first section of the Constitution, with a 75% majority needed for their amendment, there seems little danger of them being eroded. However, both Minister Radebe and Mr Ramaphosa have been at pains to emphasise that this does not preclude discussion of possible amendments to the Constitution, which might be considered necessary to make it a better document or to achieve its goals. Bearing in mind the many

amendments that have already been made to the Constitution there is nothing startling in this. The Constitution, however, is not ordinary legislation to be amended at the whim of the majority. It is the foundation of the nations values and aspirations. As such, and to ensure the allegiance of all citizens, good constitutions seek to accommodate the diverse interests and concerns of different groups. In the interest of nation building we are bound by all its provisions, and cannot pick and choose those that we honour, and those that we dont. Because ours is new Constitution drafted under pressure and with strict time limits to ensure a rapid final transition from apartheid to democracy, it is not surprising that some technical or structural issues have arisen that required correction. Most of the amendments that have been made so far fall into that category and were adopted without dissent. But amendments of substance are different. They are matters of grave importance to the entire nation, and should only be pursued if it is essential that this be done.

The question then is whether the social and economic transition advanced in the discussion documents can be achieved within the purview of our existing Constitution, or whether this can only be done by amending the Constitution. And if amendments are proposed, would they pose a threat to the constitutional order we now have? In that context I will also look at the role and proposed review of the Constitutional Court.

According to the ANC website there are twelve policy discussion documents that will be discussed at the policy conference in June, eleven of which were released on the 5th March, the day after the City Press report had been published. They traverse a wide range of social and economic issues and make recommendations as to social and economic policies that may be controversial. There is nothing strange about that in politics. They are, however, discussion

documents. Whether they will be adopted, and if so in what form, depends on decisions to be taken at the conference. What will happen after that will depend upon the cabinet, the legislature and if constitutional issues are raised, on the courts. They deserve attention because they raise issues of sufficient importance to be the subject of policy debates at an important policy conference of the governing party. Minister Radebe recognised this when he released the documents, saying:
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This process is not going to be confined to the ANC and its allies, but we call upon all sections of South African Society and our people at large to engage with these discussion documents as their input will be of crucial importance to assist the ANC in shaping the future that must be characteristic of this paradigm shift to social and economic development.

I will not attempt to analyse everything in the discussion documents. I am not sufficiently familiar with them to do that, nor there time for me to do so tonight. I will, however, refer to what seems to be accepted in the documents as being the main challenges facing our country, and ask whether those challenges can be met within our existing constitutional order, and whether decisions of the Constitutional Court can legitimately be said to be obstacles to addressing them. I will also refer briefly to the proposed review of the Constitutional Court. This is a broad canvas which does not address other salient issues that some may feel to be of importance to the subject for our dialogue, but it is I think sufficient to introduce the debate.

The discussion documents devote considerable attention to the importance of building a developmental state committed to providing employment
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opportunities and alleviating poverty. The key document entitled The second transition, outlining what the Minister described as a paradigm shift, covers 47 pages. Its purpose is said to be to help to

identify and debate the key issues both theoretical and practical that will help us to answer the difficult questions about the future of our country.10

It considers the social and economic policies that have been pursued since the transition to democracy, and the failure of those policies to deal adequately with the poverty, inequality and unemployment inherited from the apartheid state. It stresses the need for social and economic transformation and places considerable emphasis on the building of a developmental state. In doing so it undertakes a wide ranging analysis of social and economic forces nationally and internationally that are said to impact directly or indirectly upon day to day life in South Africa, and concludes that:

our society faces fundamental challenges that inhibit it from achieving its goal of an inclusive, non-racial and non-sexist country, and growing

10

The second transition, fn 5 above, Paragraph 10

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consensus that this centres around the triangle of poverty, inequality and unemployment.11

Economic policies are at the heart of political discourse. In democratic countries they are the subject of contestation, debate and disagreement. It would be surprising if this were not so in our country or within the ranks of the ANC and its allies. However, we all know that there is widespread unemployment and poverty in South Africa, and that there is persistent inequality which continues to mirror the inequality of the apartheid years; nor should there be any doubt about the importance of addressing these issues and finding the best way of dealing with them.

There is reference in the discussion document to the report of the National Planning Commission where it is said that between 1993 and 2008 there had been a slight improvement in the per capita incomes of all racial groups. The average per capita income of Africans (which included social grants) had grown at 2% per annum over this period, whilst the average per capita income of whites had grown at 6% per annum. Citing a study for the OECD on trends in South African income distribution,12 reference is made to the disparity of per capita income along racial lines. As at 1993 prior to the coming into force of
11 12

The second transition, Fn 5 above Leibrandt et al, Trends in South African Income Distribution and Poverty Since the Fall of Apartheid (2010) (OECD Social Employment and Migration Working papers No 101)

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the interim Constitution, and taking the average per capita income of whites as 100, the study shows that comparable figures for other racial groups would have been Indians 42, Coloureds 19.3 and Africans 10.9. By 2008, the last table cited, the situation of the African and coloured communities, who together make up approximately 80% of the population, was much the same. Taking Whites at 100, Indians would have been 60, Coloureds 22 and Africans 13. Statistics are always open to debate and to alternative analyses. But allowing for that, the shocking disparities are not inconsistent with life as we know it to be in South Africa, and put starkly as it is in the discussion document, is clearly a matter of the greatest concern.

The second transition document refers to what it regards as symptoms of poverty and inequality identified by the National Planning Commission as being the main challenges to be confronted by the nation.13 These are

too few people work; the standard of education of most black learners is of poor quality; infrastructure is poorly located, under-maintained and insufficient to foster higher growth; spatial patterns exclude the poor from the fruits of development; the economy is overly and unsustainably

13

National Development Plan of the National Planning Commission (11 November 2011) available at www.nponline.co.za

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resource-intensive; a widespread disease burden is compounded by a failing health system; public services are uneven and often of poor quality; corruption is widespread; and South Africa remains a divided society.

There may be a dispute as to which of these elements are causes, and which are symptoms, and to some extent causes and symptoms feed off one another and become conflated. For instance, poor education may be a symptom of poverty, but it also perpetuates poverty. However, there must surely be agreement that these are fault lines in our society which we all need to acknowledge. But accepting that, as we must do, is there anything in the Constitution or the decisions of the Constitutional Court that can legitimately be said to cause them, or to be an obstacle to government measures to address them?

The National Planning Commission says that all nine elements must be tackled in an integrated manner. However, it considers the fact that too few people work, and the quality of education available to the majority is poor, to be critical and interrelated, and goes on to say that increasing employment and improving the quality of education must be the highest priorities 14

14

id

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The causes of the poor education system are complex and partially rooted in our past. It is, however, the responsibility of government to provide a proper education system, and nothing in the Constitution or decisions of the Constitutional Court prevents it from doing so. According to the Constitution15

Everyone has the right(a) To a basic education, including adult basic education, and (b) To further education which the state, through reasonable measures, must make progressively available and accessible.

Provision is also made to facilitate the provision of education in an official language of choice,16 and for the establishment at their own expense of private schools.17

The defective provision and location of infrastructure, the unsustainable resource intensive economy, the widespread disease burden and failing health system, the poor quality of public services and widespread corruption, all of which inhibit job creation, can also not be blamed on the Constitution or the
15 16

Section 29 (1) of the Constitution Section 29(2) of the Constitution Section 29(3) of the Constitution

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Courts. In so far as the Courts have been called upon to address such matters, I am not aware of any decision that might be said to have been responsible for these failures. On the contrary, in the decision of the Constitutional Court, now praised by the Minister in his statement of 28 February this year,18 the way was opened for the treatment of mother to child transmission of the HIV virus, which led in time to the development of the extensive anti-retroviral programme we now have, to combat what must surely be one of the heaviest burdens upon community health.

Nothing in the Constitution or the decisions of the Courts facilitate corruption. On the contrary, the Constitutional Court has made clear on more than one occasion that corruption is a threat to our constitutional order. It has cited with approval a statement by Mr Kofi Anan, former Secretary-General of the United Nations that:

Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a governments ability to provide basic services, feeding inequality and injustice, and discouraging foreign investment and aid. Corruption is a key element in economic under-

18

Fn 7 above.

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performance, and a major obstacle to poverty alleviation and development.19

Corruption that goes unchecked poses a serious threat to democratic government. 20 It spreads insidiously, infecting attitudes in government services and the political domain, undermines police services and other institutions that are meant to protect and uphold the Constitution, and threatens the Constitution itself.

A system of government that ensures accountability, openness and transparency is one of the founding values entrenched in section1 of the Constitution. Decisions of the courts upholding these principles, the office of the Public Protector established by the Constitution, and provisions of the Constitution entrenching rights of access to information and just administrative action, provide avenues for exposing corruption. In this context, the Protection of

State Information Bill, with its harsh penalties for the disclosure of classified information, and the proposed establishment of a media tribunal give rise to greater concern, than any provision of the Constitution or decision of a Court.
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Cited by the Constitutional Court in Glenister v President of the Republic of South Africa 2001 (1) SA 833 (CC) para 167 20 South African Association of Personal Injury Lawyers v Heath and Others 2001(1)SA 833(CC) affirmed in Glenister v President of the Republic of South Africa, n 19 above

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Uneven and poor public services are also not attributable to the Constitution or the Courts. Section 195 of the Constitution calls for a high standard of

professional ethics in the public administration, which should be efficient, transparent and responsive to peoples needs.21 Despite this the Auditor-General has been scathing in his comments on the bureaucracy, and in particular on Municipalities which are meant to be in the forefront of service delivery. These failures cannot be attributes to the Constitution or the Constitutional Court.

The discussion document on social transformation raises the issue of land reform. It contemplates new methods being adopted to be carried out in accordance with the Constitution. It is critical of the willing buyer willing seller model which it regards as having inflated prices of land acquired for redistribution, and proposes making greater use of expropriation within the framework of the Constitution. I have on another occasion22 pointed out that the willing buyer willing seller model is not a requirement of the Constitution. Land can be expropriated for the purposes of land reform,23 and nuanced provisions are made in the Constitution for the assessment of compensation, and

21 22

Section 195 (1) of the Constitution Without Fear, Favour, or Prejudice: the courts, the Constitution and transformation lecture delivered at UCT in January 2012, 23 Sections 25 ( (4) and (5) of the Constittuion

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the time and manner of its payment. 24 Given these provisions, and the broad fiscal power of the state, a legitimate land reform policy can be developed within the framework of the existing Constitution. The problem is not the Constitution; it is that the powers given to the state under the Constitution have not been invoked

The discussion document on the legislature and government proposes reforms to rationalise and strengthen provinces. What is contemplated is that the number of provinces be reduced, that ethnic boundaries be done away with, and that provincial powers be increased. It is not clear what this will involve or which provinces will be affected. The document calls for broad consultation with political parties and the public on this issue. If adopted, the proposal would affect vested interests both inside and outside of the ANC, and would require a constitutional amendment that could be contentious and not easy to secure.

In a constitutional democracy it is not unusual for there to be tension on occasions between between courts and the other arms of government. That is because it is part of the courts duty under the Constitution to determine whether legislative and executive action is consistent with the Constitution. This is not the occasion to address that issue and engage in a debate as to why
24

Sections 25 (2) and (3).

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that enhances rather than curtails democracy. Courts can and do play an important role in upholding and protecting rights entrenched in the Constitution. They are a bulwark against corruption and maladministration. And that is why the report of a proposed review the powers of the Constitutional Court attracted such strong opposition when it was announced.

It has since been made clear that this is not what is contemplated. Although the Minister, as the President had earlier done,25 referred to a review of the powers of the Constitutional Court in his statement of 28 February, when the terms of reference for the institution to conduct the enquiry were issued a month later, they did not address that question. It was now not confined to the Constitutional Court but would include the Supreme Court of Appeal as well. It is to be an assessment of the impact of the decisions of these two Courts on the South African law and jurisprudence. It is made clear that constitutionalism is not an issue to be considered. In making the assessment the institution to be appointed must observe principles enshrined in the Constitution, and emphasis is given in this regard to the supremacy of the Constitution and the rule of law, human dignity and equality, judicial independence, separation of powers as embodied in the Constitution and defined by our courts, access to justice for all and transparency and openness. The assessment is said to be aimed at

25

Fn 7 above

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enhancing the legislative and other measures that government has taken under the Constitution to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. 26 Included in the assessment will be a study on the implementation of the decisions of these two courts with a view to highlighting long term benefits to the broader population, and other matters relating to litigation costs, access to courts, and delays. All that is good, but it is less clear why the investigating institution is also required to assess the jurisprudence of the Courts. That is done regularly by academics and journals, but it is unusual for an institution to be appointed by the government to do so. Whose views on the soundness of the jurisprudence will be given credence by the government? Those of the Constitutional Court and the Supreme Court of Appeal, or those of the institution?

I have tried to identify important issues for the dialogue to come. Before closing there are two matters that I want to stress. First, amendments to the Constitution are matters of great importance. Constitutions are not written in stone and provision is made in our Constitution for it to be amended. There is, however, a danger in accepting that amendments to the Constitution are no different to amendments to other laws, or that rights important to vulnerable minorities are less deserving of protection. The first steps taken to erode

26

These are measures required by Section 165(4) of the Constitution

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entrenched rights are particularly dangerous, for they open the way for a culture in which the Constitution is treated as an ordinary law. We saw under apartheid how the piecemeal erosion of such rights as we had, opened the way for the bit by bit construction of a security state. Where possible, important policies should be developed and implemented in accordance with the Constitution; amendments to the Constitution to facilitate particular policies considered to be of fundamental importance should only be resorted to if no other way is possible.

Secondly, disputes as to economic policies are by their very nature heated. It is, however, the prerogative of an elected government to determine what those policies should be. It can be anticipated that the paradigm shift contemplated by the discussion documents will be disputed. The articulation of conflicting views and debates on them could result in the policy that is ultimately adopted being better than it would otherwise have been. What is important is that the contestation should not descend into a partisan confrontation polarising an already overheated political atmosphere. The issues are of too great importance for that to be what happens.

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The challenges identified by the National Planning Commission and affirmed in the discussion document on the second transition, are of fundamental importance. The great question facing our nation is how to address them. If we fail to do so effectively, our constitution will be in danger. It will be in danger because widespread poverty and extreme and persistent inequality, in a society in which there are great disparities of wealth and increasing evidence of corruption, will inevitably lead to dissent and instability. We have seen

evidence of this in strike action by lowly paid workers, and dissent in impoverished townships in different parts of the country, which are euphuistically referred to as service delivery protests. These protests,

sometimes with overtones of violence, are likely to continue and to grow more intense if the root causes are not addressed. And if that happens a temptation to curtail rights and to attempt to exercise control through authoritarian means cannot be excluded. That is not where we are now, nor is it what is

contemplated in the discussion documents or the court review.

My answer to the question whether our Constitution is in danger would be this. I do not think that there are likely to be amendments to the Constitution in the foreseeable future that will undermine its core values. The danger to the Constitution lies elsewhere. It is in the poverty and inequality in our society, and the corruption, poor education and related challenges identified by the
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National Planning Commission, and referred to in The second transition. If they are not effectively addressed our Constitution will indeed be in danger.

Arthur Chaskalson 10 May 2012

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