Constitutionalism in South Africa

There has been much uproar in South Africa recently, with the ruling ANC, proposing some amendments to the country’s much celebrated constitution. The ANC has proposed a review of the constitutionally guaranteed powers of South Africa’s judiciary amongst many other suggestions that it has put forward for public discussion.

Naturally, this has drawn much criticism from prominent South Africans and so-called “experts” whose views enjoy much media coverage. As I’ve been following all the arguments in the media, against the proposed constitutional amendments, I’ve started to think a whole lot about Constitutionalism in South Africa and whether Constitutionalism and all its values are indeed deeply embedded in the psyche of the average South African.

A constitution is supposed to be a reflection of the societal consensus within a particular nation, in terms of the values that it will uphold and the ideals it will promote in the process of pursuing the nation-state project. South Africa has one of the most celebrated, liberal, progressive, constitutions in the world and yet it is highly debatable whether this constitution reflects the value system of the majority of its citizens. A few examples will bear this out. The constitution guarantees the rights of homosexuals and seeks to promote and protect the interests of same-sex unions, yet the vast majority of ordinary South Africans, most of whom are black, hold very conservative views about homosexuality, to the point of being highly intolerant of it. The constitution is steadfastly against the death penalty and all forms of corporal punishment, yet multiple surveys that have been conducted, have shown that the majority of South Africans are in favour of the death penalty and corporal punishment.

So we have a constitution that is based upon liberal values, whilst the majority of the population holds very conservative views on most of the critical issues affecting the nation, which makes it very difficult for any honest observer to believe that Constitutionalism has been deeply entrenched in South Africa. If anything, the constitution in South Africa, is a reflection of the liberal values of a supposedly “enlightened”, modernised, minority elite and as such, the majority of South Africans would have no qualms about the constitution being amended and the powers of the judiciary being curtailed, because for them, there is no psychological attachment to the constitution and Constitutionalism, as it does not reflect their value system and their idealistic aspirations in any way. As the Greek philosopher Plato put it, “I say that right is the same in all states. namely the interest of the established ruling class; and this ruling class is the strongest element in each state, and so if we argue correctly we see that right is always the same, the interest of the stronger party.”

That is why the battle to “save” the constitution and Constitutionalism in South Africa, has been the preserve of minority elites. The poor and the working class, who make up the majority of the population, have no psychological attachment to South Africa’s constitution and Constitutionalism whatsoever. Not only does the SA constitution not reflect the values and views of its majority, but often the issues that dominate the headlines and galvanise the elite minority to activism, in defence of the constitution and Constitutionalism, are of little or no concern to its impoverished majority.

South Africa’s poor black majority have little or no interest in defending media freedoms, in fighting to keep the powers of the judiciary etc. These are all issues that are on the priority list of its elite minority, with their First World standards of living. This elite minority will hold all sorts of mass protests, run all kinds of media campaigns and lodge various legal challenges in order to “defend” the South African constitution and Constitutionalism, whilst ignoring the key issues that concern its poor majority: jobs, access to quality education, housing and sanitation, water, electricity etc. Those are the key issues that concern the poor majority and they couldn’t be bothered about whether the judiciary’s powers were curtailed or the media was regulated.

So we have contrasting interests and value systems, which lead to a different focus and prioritisation, hence Constitutionalism is in serious trouble in South Africa at present. To use the words of Karl Marx, “the ideas of the ruling class are in every epoch the ruling ideas, i.e. the class which is the ruling material force of society, is at the same time its ruling intellectual force.”  South Africa’s constitution, as it stands at present, is simply an amalgamation of the ideas of an elite, minority ruling class, without in any way taking into consideration the views of its impoverished majority and it is for this reason that we can safely conclude, that Constitutionalism in South is in serious trouble. Contrary to popular, media-established opinion, it is not the South African government and the ruling ANC that are the biggest threats to the constitution and Constitutionalism, but rather the fact that the constitution itself is an inaccurate representation of the values and aspirations of its people.

Mugabe Ratshikuni

introverted, shy, nothing to write home about