In Europe, they call it ethnic cleansing; according to Zimbabwe government apologists, it is settlement of the land question. Whichever view we take on the situation in Zimbabwe, there are facts in common to each. People are being chased off land to which they have legal title because of the colour of their skin. Those doing the chasing enjoy government and security force support and protection. Those being chased face government sanction if they resist the chasers.
In the process, Zimbabwe’s system of property rights is being overthrown by the state itself. And, in consequence, the country’s economy and output are in very serious decline.
For South Africans, with deep ties of blood and history to neighbouring Zimbabwe, there are several worrying potential consequences. One, which we ignore at our peril, is the effect on our own race relations. We, too, have a land question and most of the best land is owned by people of one colour: white. What is happening in Zimbabwe resonates through our body politic, and has the potential to deepen interracial distrust.
A second potential consequence is a flood of refugees of all races across our borders fleeing violence and economic collapse. And a third is a perception internationally that what happens in Zimbabwe can happen as easily in other countries in the region states whose institutions of government and civil society are no more mature than Zimbabwe’s. The result, in this last instance, would be to conclude that property rights in Southern Africa, including South Africa, are not something in which any potential investor can have confidence.
This last impression is deepened by the signal failure of other states in the region to show any will to curb the excesses in Zimbabwe. It is exacerbated by these states’ failure even to express, clearly and unambiguously, their opposition to what is being done in Zimbabwe.
The missing ingredient the factor that can begin to challenge this region’s suffering and increasing association with chaos and decline is clearly political will. Imposing general economic and transport sanctions against Zimbabwe may be better deployed further down the road, if less drastic options fail. But we can relatively easily start now by freezing the foreign bank accounts and assets of Zimbabwean leaders and officials, curbing their right to travel, ostracising them diplomatically and considerably improving and deepening relations with the opposition to the Mugabe government.
We must get to it now. South Africa has a particular leadership role to play in this offensive.
Viva Chaskalson amendment
Since its inception in 1994, the Constitutional Court has been an outstanding success. In a short period of time it has built up an enviable reputation in the international legal community. Its sober judgements have laid waste fears that the court would prove too sympathetic to the ruling party. Its independence and authority are now beyond question.
The court’s success is in many ways attributable to the stewardship of its
president, Arthur Chaskalson, who is due to retire after his 70th birthday in November. Chaskalson has now proposed amending the Constitution to allow Constitutional Court judges to stay on after 70. The proposal, which has become known as the “Chaskalson amendment”, would bring the judges into line with their South African brethren and replace the current rule that they serve a non-renewable 12-year term and quit at 70. South African judges retire at 70, but can be asked to stay on until 75.
We would argue that, on balance, the “Chaskalson amendment” is a necessary
change to the Constitution a change that could strengthen the court and entrench the continuity that is essential to the development of sound constitutional jurisprudence. It takes time for an 11-judge court to settle down and develop its philosophy. The current rules effectively mean clearing the court out after 12 years, which would undo such progress, undermining that crucial continuity. Furthermore there is a short supply of jurists able enough for the job. The new amendment allows those that there are to hang around longer. The downside is, of course, that the amendment could be used to entrench weak, pliant judges. But that is a risk worth taking.
In the short term, the amendment would also do the country an immense service by ensuring that Judge Chaskalson himself remains in place for a while longer.
In terms of another constitutional amendment, the president of the Constitutional Court will become the head of the judiciary, presiding over both the Supreme Court of Appeal in Bloemfontein until now headed by the chief justice and the Constitutional Court. If he stays, that will make Chaskalson the first incumbent of this new position and provide a solution to government’s quandary about how to fill it. There is a strong need for a black chief justice, but there are currently no obvious candidates. The rumour is that Dikgang Moseneke is being groomed for the top job, having quit business to become an acting judge.
What better interim solution than the first president of South Africa’s Constitutional Court?