Mungo Soggot
A LEADING United States lawyer has thrown his weight behind an attack on South Africa’s final Constitution for allowing big companies to steamroll the rights of individuals.
Ralph Nader warns the Constitution could entrench a new form of power abuse in the country — “autocratic rule by big corporations”. In an article for the Mail & Guardian, he says it is crucial that the Constitution — which gives juristic persons, such as companies, the right to make use of the Bill of Rights — put individuals’ rights first.
Nader has helped draft an objection to the Constitution by a local team of public policy advocates. The court will start certifying the Constitution next week, checking whether it conforms with the principles laid down in the interim Constitution.
The objectors say: “The risk is (the Constitution) will entrench and extend prevailing inequalities and frustrate the ability of our new democracy to redress past injustices and to advance meaningful freedom and inequality.”
Their objection is accompanied by a document which argues South Africa suffers from one of the most unequal distributions of wealth in the world, with 10% of the population hogging 47% of the country’s income. They remind the court South Africa’s economy is dominated by a few massively powerful companies — such as Anglo American — whose wealth would give them far more legal firepower than individuals if there were a clash of constitutional rights.
They argue the granting of equal rights to companies could undermine the new government’s policies of fighting inequality, regulating companies and fostering development. In particular, they say it could undermine the goals of the RDP.
The objectors say there is considerable foreign constitutional case law, particularly from the United States, which shows how the granting of constitutional rights to big companies has undermined the rights of individuals —in particular, the right to freedom of expression, freedom of association, free speech and privacy . “The rights of natural and juristic persons are frequently incapable of equal coexistence.”
One of the most striking risks posed by the Constitution, Nader warns, is that South African companies could use the Bill of Rights to outgun individuals when it comes to drumming up support for political parties. He says that by allowing companies to bask in the right to “campaign for a party or political cause” South Africans could soon find their new found democratic powers undermined.
The objectors are Patrick Bond of the National Institute for Economic Policy, Darlene Miller of the Institute for African Alternatives and Zita Langa of the South African Communist Party. They stress they do not believe that juristic persons — which include bodies such as trade unions and action groups — should never enjoy constitutional rights, but that the Constitution should merely recognise that their rights conflict with those of individuals and that the rights of individuals should come first.
Another objection to the Constitution which is likely to be hotly debated is the controversial lockout clause. Business South Africa is leading the charge against the bar on business from locking out workers yet gives workers the right to strike.
Cosatu’s counsel, Gilbert Marcus and Dennis Davis, argue the Constitution does give employees and employers parity of arms considering the historical imbalance of power between labour and business in South Africa.