Business attacks labour clauses
The prospect of renegotiating the constitution gives the ANC the jitters, repo rts Marion Edmunds
The African National Congress’s constitution-makers are increasingly jittery t hat opposition parties will want to unravel large chunks of the constitution, should it fail certification, and be thrown back at the Constitutional Assembl y (CA) by the Constitutional Court.
The ANC’s concerns have been fuelled by the realisation that, technically, the entire constitution would be open to review if referred back for amendments o
n the grounds that clauses did not comply with the 34 constitutional principle s.
The ANC also knows that the political landscape has changed radically since th e constitution was passed by the CA in May. Of particular interest to the ANC are the movements of its chief oppositions: the Inkatha Freedom Party and the National Party. The latter, which left the Government of National Unity as the constitution was adopted, has more muscle to flex to prove its points as chi
ef of the opposition.
NP secretary general Roelf Meyer, however, is taking a supportive line. “I don ‘t think that our position on the constitution would really change, although t echnically speaking the constitution could be re-opened. We would analyse the approach of the judge and concentrate on that. I don’t think it would be respo nsible to open up the whole thing again.”
But it is the Nat back-benchers, not Meyer, that the ANC is worrying about. So urces say the more conservative element of the NP, which has been pushing to d efine the NP in opposition, will see a second chance of negotiating the consti tution as an opportunity for a public brawl on political principles, and possi bly a stand-off. Their support for the passing of the constitution was lack-lu stre in th e first place, and the prospects of watching Meyer co-operate with the ANC a s econd time could raise the temperature within the party higher than ever befor e.
The Freedom Front’s Corne Mulder thinks the NP would try to get extra mileage out of such a referral.
“They are desperate to demonstrate their strength as an opposition party … b ut I really hope that it’s not necessary because it is a chapter I want to clo se,” he said.
Certainly, the temptation for the NP to exploit a constitutional court referra l to their political ends will be enormously tempting, given that the ANC will still need their support to get a two-thirds majority to pass the constitutio
n a second time, within an allotted three months.
And while the ANC is watching Meyer’s back with one eye, they have the other o n Inkatha, which seems to have found a taste for national constitutional polit ics all over again.
Loose talk in the Constitutional Court indicates that the party’s hard-line co nstitutional advisor, Mario Ambrosini, believes it would be ideal for the IFP to make a dramatic return to the negotiating table, with a fresh deck of deman ds, should the constitution fail certification. The likelihood that the Kwazul u-Natal constitution will not be certified by the court means the IFP could wa nt to shif t their demands back from the provincial to the national negotiating table.
IFP MP Walter Felgate has denied that any decision on a return has taken place , saying it would be discussed at the end of the month by the IFP’ central cou ncil.
However, he ruled out any possibility of a negotiated alliance with the NP, if it did happen. “The IFP makes its own decision. We will not run after [FW] De
Klerk — anything he does will not be anything more than posturing.”
ANC MP’s say, off the record, that a return to the CA by the IFP was a possibi lity in the light of recent talks with Inkatha over co-operation in KwaZulu-Na tal. While denying that the Constitution was on that agenda, they said that it was something that could flow from discussions.
Meanwhile, ANC MP Pravin Gordhan says there is a “gentleperson’s” agreement th at negotiators would not tamper unnecessarily with the constitution should it be referred and that only those aspects not complying with the process will be looked at.
“Where an issue is in isolation, it will be easy to negotiate, but where an is sue has a ripple effect on other agreements, the renegotiation will be more di fficult,” he acknowledged.
Part of the problem is that nobody is quite sure exactly how the Constitutiona l Court would refer back the constitution, and what its instructions would be. The process would have to be managed politically to prevent the delicately st
itched constitution from falling apart at the seams.
What makes the ANC even more anxious is that it is unlikely that the Constitut ional chair Cyril Ramaphosa would be available to steer the process through to its final version, because of business commitments. There is nobody in the AN
C with the experience or authority to replace him.
Many of the constitutional administrative staff have organised new jobs and wi ll not be available to see the process through to its conclusion, should it be extended.
The DP’s veteran negotiator Colin Eglin agrees with Gordhan and Meyer that it would be unlikely that senior politicians would want to unravel all the knots tied during the late hours and long months of negotiations. However, he does n ot think the constitution will be passed first time round.
“We produced a constitution of 241 clauses, and we did not have a bunch of hig h-powered lawyers testing the clauses as we went along to see whether they wou ld conform with the 34 principles. If, as a result of our effort, every single one of those clauses complied with the principles we would be super-people. I
‘d be very surprised if we hit our jackpot,” he said.