Rethinking constitutionalism in South Africa

For the latest edition of The Oppidan Press, we asked students what they thought of constitutionalism in South Africa. Responses varied from negative and positive, but signalled the need for a closer look at what constitutionalism really means in the contemporary South African context. To assist with this process, Prof Leonhard Praeg, of the Department of Political and International Studies, serves as an expert voice.

The Stance

Recently, President Jacob Zuma was under scrutiny after failing to comply with the public protector’s orders to pay back a large portion of funds spent on his Nkandla homestead. Failing to legitimise the public protector’s orders (remedial action) is in direct violation of the constitution, specifically section 182(1)(c). Although the function of the public protector is outlined in section 182 and 183, Zuma commented on the remedial actions as “recommendations”, rather than actual law. Chief Justice Mogoeng Mogoeng is quoted on the Constitutional Court’s (Con Court) Nkandla judgement in the Mail&Guardian, “The President thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers.”

This action (or lack thereof) has generated mass criticism from opposition parties like the Economic Freedom Fighters (EFF), and former President Thabo Mbeki. Mail&Guardian writes, “Mbeki said if people understood the Constitution much better, they would demand the removal of government officials who have been found to have acted unconstitutionally.” Continued with, “Justice Zak Yacoob who was part of the group of people that wrote the Constitution, said South Africa would only achieve the society it envisioned in the Constitution if leaders acted honestly.”

Why did this happen?

As easy as it may be to criticise Zuma for referring to something so concrete as the constitution, as a mere “recommendation”,  it must be understood that up until October 2015, Mail&Guardian writes, “there was legitimate legal confusion about the powers of the public protector.” This does not prove that Zuma had intended to act unconstitutionally, but rather sought to clarify that which was presented against him.

Praeg comments that this confusion was surrounding whether or not the public protector’s remedial actions were to be interpreted as the “force of law”. He further explains that it was unclear whether, as a chapter 9 institution, the public protector’s office forms part of the legislative process (in which case its findings would have the “force of law”) or whether its oversight status places it outside of the legislative process. So, in a context of such uncertainty, one could argue that its recommendations come from outside the legislative process and, as such, are not binding.

As a result, Con Court was required to step in and  actively re-interpret the concerned part of the constitution. Praeg iterates that this clarification process “signalled something positive” for the law, rather than negative.

Constitutionalism and the revolution

When it comes to constitutionalism and revolution, the two are not as disconnected as populist discourse (democracy) may seem to suggest. Looking back, the anti-apartheid struggle was a call for a legal system that emphasised and prioritised equal rights before the law. Praeg explains that the liberation struggle was conducted as a demand for universality (that all people be treated the same, wherever and whoever they may be). This universality translated into the demand for universal rights which, by nature, lack a certain particularity. The right to freedom of speech is the same right all over the world. Post apartheid has witnessed a call for particularity – for the so-called Africanisation of the law, failing which revolutionaries call for discarding the constitution, or dismissing those who uphold it as “constitutionalists” (as opposed to revolutionaries).

The trouble with this then becomes, how particular can you get?

Mbuyiseni Ndlozi, member of the EFF central command team, wrote in the Daily Maverick

“Following the outcome of the Constitutional Court Judgment on the case brought by the EFF against Zuma in relation to Nkandla corruption, the liberal crowd celebrated the EFF. On that day, many assumed that the name of our ideological orientation is “constitutionalism” and called us constitutionalists. On the other hand, some in the ultra left took to pen and said our defence of the Constitution meant that we have deviated from the revolution we represent.”

Constitutionalism and revolution are not to be interpreted in antagonistic terms, but rather in parallel, working together in a mutually beneficial relationship. Praeg elaborates on this by arguing if the African National Congress (ANC) had more “political will” to capitalise on the revolutionary capabilities of the constitution, socio economic change would be much more attainable.

Constitutionalism as Western/eurocentric

A large misunderstanding about constitutionalism in the South African context, is that it carries with it, Western/eurocentric baggage. Although Western countries like the United States and Great Britain practise constitutionalism, this is not directly related to the practise in South Africa. To say that constitutionalism is Western/eurocentric and therefore has no place in ‘Africa’ is scapegoating, and as Praeg would say, “insulting”. He continues, “given how hard we fought, as co-creators, through anti-colonial struggles, of what has subsequently emerged as a global regime of universal rights

Constitutionalism is based on the idea of universal human rights, and human rights discourse was not simply invented by the west. These rights emerged in the struggle between domination and resistance to domination. To argue then that constitutionalism is purely Western/eurocentric (and therefore invalid or somehow ‘out of place’ in Africa), is to say that nowhere ever, at any time, was human rights discourse thought of in Africa.

This is a myth.

Rather than scapegoating the constitution as a useless eurocentric product, the focus needs to be redirected towards the revolutionary intention on forcing the government to capitalise on the transformative or revolutionary potential of the constitution.

*Let us know what you think! Responses to this article are welcomed by The Oppidan Press.

 

Words by Kathryn Cleary

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