Undermining the (South African) Constitution – Reuel Khoza’s view


A war of words (difference of opinion) has broken out between the ANC’s Secretary General Gwede Mantashe and respected South African businessman Dr. Reuel Khoza. Dr Khoza has been critical of the ANC and Governments desire to review the judiciary and amend the constitution.

Dr. Khoza was quoted as saying: “South Africa is widely recognised for its liberal and enlightened Constitution, yet we observe the emergence of a strange breed of leaders who are determined to undermine the rule of law and override the Constitution”

Below is a post from Dr Khoza’s personal blog in which he expresses his view.

(The Patterns is hoping to arrange a conversation with Dr. Khoza)

A storm erupted in South Africa during the past fortnight, and it was not Cyclone Irina that caused it. The latter dumped some heavy rain on the east coast and then went away into the Indian Ocean south of Madagascar where it sat lurking.

The storm I am talking about arose over a City Press report stating that the ANC government plans to revise the Constitution.Three particular changes were mooted in City Press:

  • Removing the basic right of property ownership,
  • Reducing and centralising the powers of the provinces, and
  • Tampering with the independence of the Reserve Bank.

It just so happens we are in Constitution Week when we are supposed to celebrate the document, not mourn its passing.

Our Constitution is too valuable to fiddle with at the whim of the powers-that-be. Any changes should be put to a national referendum and not settled behind party lines. Only a positive vote of all the people who are to be affected by revisions to the Constitution can legitimately replace the original document. And only if the questions are posed clearly, based on the actual clauses that are proposed.

According to the newspaper report, the property right would be treated as a “sunset clause” of the 1996 Constitution, intended only to smooth the transition from apartheid to the new South Africa. The information came from draft policy documents that will be distributed to the party’s branches ahead of its policy conference in June. In a section on strategy and tactics titled “The second transition”, the ANC says the Constitution of 1996 “may have been appropriate for a political transition, but it has proven inadequate and even inappropriate for a social and economic transformation phase”.

In response to the weekend report, the opposition Democratic Alliance immediately leapt into the fray. Its Shadow Minister of Justice and Constitutional Development, Dene Smuts, expressed “shock and extreme concern” at the description of the property clause in the Bill of Rights as a “sunset clause” in the Constitution. “Section 25 is no such thing,” she said, “It represents the full, final and exhaustively negotiated right of all South Africans not to be arbitrarily deprived of property – as so many were in the apartheid era.”

As with the eye of the cyclone off our shores, we should seek a calm spot to reflect while the storm rages all around. It would be sane and sensible to conduct a national debate that asserts the stabilising influence of reason and compassion: reason, to consider constitutional changes, and compassion to empathise with the dispossessed and the desperate who continue to suffer the pangs of poverty and deprivation.

I have to express my own wonder and dismay at both sides in this developing battle. Certainly, property was enshrined as a basic right; but equally certainly it is time to re-examine the Constitution to see whether changes would speed up social transformation in a country that still reflects the apartheid reality of two nations – the rich and the poor, as former President Mbeki once said. It was Mbeki who tabled the 1996 Constitution in Parliament and it was the ANC that took full responsibility for it after revising the Interim Constitution that was negotiated in multi-party talks at Kempton Park in 1993.

There is nothing sacrosanct about any constitution – including the best, and ours is undoubtedly among the best. Constitutions are living, dynamic guiding documents that should be open to circumspect and conscientious adaptation. There is nothing fixed or final about them. Our Constitution should unite the nation around a vision of the future in which all of us enjoy basic rights, a decent living standard, job opportunities and the chance to live out our human potential.

This can hardly be said of the country we currently live in after 18 years of democracy. There is a strong case to be made for accelerated transformation – but on a path that protects us from the injustices of the past. As President Mbeki suggested at the launch of the 1996 document, he and all of us are Africans, and we need to come to terms with our joint destiny on this continent. Rich and poor, white and black, must pursue common goals.

The problem I have with the revision of the existing Constitution is not over the principle that it should be revisited, but over the credibility of those who are making these proposals. The editor of the Financial Mail, Barney Mthombothi, recently wrote that when Mandela and Mbeki made changes to the Constitution it was not with any ill-intent but to make it better. “This new lot is different. They don’t want to change the constitution. They want to gut it, to remove its entrails and thus change the trajectory of society.”

That’s the key point. The Constitution we have reflects the kind of tolerant, equitable society we idealised when all sensible South Africans came together to agree on a common future. The social value of the Constitution resides in its statement of substantive values. It is a commitment to a national community that embodies respect for the rule of law above any individual or party.

Now we witness the party that embraced these values behaving as if it is time to renege on elements of them because the courts are getting in the government’s way. City Pressquoted critics saying the ANC had lost its “moral compass”. Certainly, the current government has eroded its credibility with questionable appointments to positions that should safeguard the separation of powers.

The President himself has been told by the Supreme Court of Appeal that he did not sufficiently apply his mind in the appointment of a National Director of Public Prosecutions – after an official inquiry and other judgements had made extremely negative findings on the candidate’s integrity.  Checks and balances have been weakened, apparently because the ruling coterie is trying to shore up its own position.

To make matters worse, various acts of corruption and unethical behaviour have been ignored or condoned. Straightforward thievery of state resources is mirrored in the business practices of tenderpreneurship, while all of us, as citizens, are the losers. We can justifiably feel a deep suspicion that changes to the Constitution will result in the entrenchment of a self-serving elite with little recourse for the rest of us to stop the rot from the top down.

Land is the emotive issue at the centre of the constitutional wrangle.  The ruling party is considering doing away with the basic right to property because, as President Zuma said in his State of the Nation address this year, the “willing seller, willing buyer” principle was not working and had contributed to the very slow pace of land reform. Redistributing land is a requirement under the Constitution.

Critics, though, say that Government has fumbled land reform – and this has nothing to do with the basic property right. On the one hand, the bureaucratic snail’s pace of land purchases has frustrated farmers and communities alike; on the other no proper financing and agricultural extension services have been provided to put black farmers on their feet.

All sides have made telling points: muddle has gone hand in hand with necessity. The long and painful history of land dispossession must be reversed or our democracy could be wrecked in the manner of Zimbabwe. If the willing seller/willing buyer principle is truly an impediment let it be removed; but we need firm reassurances about what will be put in its place because wholesale expropriations without fair compensation will further agitate the already angry white farming interests.

So I say again, we need to keep calm and reason things out, with sensitivity to all sides. Ethical and purposeful leadership is required to chart the way.

My own recent book, Attuned Leadership, is subtitled African Humanism as Compass. I argue there that leadership without an ethical core is misleadership, or the perversion of authority roles to serve negative ends such as enrichment and tyranny.

The proposed constitutional changes – which may or may not pass at the ANC’s national conference in Mangaung later this year – could sweep away the negotiated settlement and lead to racial and ethnic polarisation. There is a very real danger that minorities (and considerable elements of the black majority) will not accept the removal of the property right. They will see the changes as the Zanu-fication of South Africa, and as a prelude to widespread landgrabs without compensation.

This would not mean the end of property ownership as such, just a reallocation of property to those with sufficient sway to gain government rewards. It might rapidly advance the corruption that is already at the heart of bad governance in South Africa.

The very vagueness of the attack on the Constitution is cause for deep concern. What we need, in the calm eye of the storm, is openness, debate and thorough interrogation by the media and the intelligentsia. We cannot stand aside and watch key principles of the rule of law being perverted to serve misleadership.

-         Reuel Khoza

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