2012 05 11 ccr public dialogue - is sas constitution in danger

7/31/2019 2012 05 11 CCR Public Dialogue - Is SAs Constitution in Danger

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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? What

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 tri-

partite 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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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.

1Article 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

2In Rapport of 18 February 2012

3

Address by the President at the Access to Justice Conference in Johannesburg in 2011.4Interview of the President by Independent Newspapers on 12 February 2012

5www.anc.org.za/events.php?2012last accessed 8 may 2012
http://www.timeslive.co.za/opinion/commentary/2011/09/01/the-big-read-anc-s-fatal-concessionshttp://www.timeslive.co.za/opinion/commentary/2011/09/01/the-big-read-anc-s-fatal-concessionshttp://www.anc.org.za/events.php?2012http://www.anc.org.za/events.php?2012http://www.anc.org.za/events.php?2012http://www.anc.org.za/events.php?2012http://www.anc.org.za/events.php?2012http://www.anc.org.za/events.php?2012http://www.anc.org.za/events.php?2012http://www.timeslive.co.za/opinion/commentary/2011/09/01/the-big-read-anc-s-fatal-concessions


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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:

6ANC Holy Cows Emerge, Times Live, 7 March 2012

7

Media statement by the Minister of Justice and Constitutional Development on the transformation of thejudicial system, Cape Town, 28 February 2012 available atwww.info.gov.za/.../Dynamicaction, last accessed 8

May 2012
http://www.info.gov.za/.../Dynamichttp://www.info.gov.za/.../Dynamichttp://www.info.gov.za/.../Dynamichttp://www.info.gov.za/.../Dynamic


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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

8City Press of 11 March 2012


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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

9Section74(1)(a) of the Constitution.


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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.


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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 issuesboth theoretical and practicalthat

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

10The 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

The second transition, Fn 5 above12Leibrandt 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 atwww.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 priorities14

14id


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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

15Section 29 (1) of the Constitution

16

Section 29(2) of the Constitution

17Section 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.

19Cited by the Constitutional Court in Glenister v President of the Republic of South Africa 2001 (1) SA 833

(CC) para 16720

South African Association of Personal Injury Lawyers v Heath and Others 2001(1)SA 833(CC) affirmed inGlenister 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

21Section 195 (1) of the Constitution

22

Without Fear, Favour, or Prejudice: the courts, the Constitution and transformation lecture delivered at UCTin 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

24Sections 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 ofthe 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

25Fn 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

26These 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

2012 05 11 ccr public dialogue - is sas constitution in danger

Documents