This column concerns an old theme — can we truly develop a constitutional democracy without any shared normative framework? The question is prompted by the government’s inexplicable failure to respond to the oppression in Zimbabwe in anything other than its usual passively ineffective way, as refined over the past five years.
Oddly, the government’s approach did succeed in accomplishing something remarkable — it united a range of bodies from the left (Cosatu) to the right (the Freedom Front). So can it not be argued that this un-usual display of unity is reflective of a national consensus against brutal dictators who place personal hubris above societal welfare?
The government commands a huge majority of the voters and runs no risk of being unseated at the next election. Hence it is almost inconceivable that the country will witness a significant policy U-turn.
In this way our constitutional ambition is placed in jeopardy. As the Constitutional Court reminded the nation in the cases of Khalfan Mohamed and Samuel Kaunda, South Africa not only adheres to international law, but sees the latter as essential to our own legal system. Judge Sandile Ngcobo expressed the point this way in the Kaunda case: ”It is this commitment to the promotion and protection of fundamental human rights that binds us and defines us as a nation and which must discipline our government and inform the duty which it owes to its nationals.”
This commitment ”must be demonstrated by the state in everything it does. It must inform its foreign relations policy. Indeed the principles that underpin the government’s foreign policy include a commitment to the promotion of human rights, democracy, justice and international law in the conduct of relations between nations.”
But international human rights law is clearly not the guide to our foreign policy.
The Constitution was intended to supply a set of unwritten rules that would inform individual South Africans’ ability to decide what is acceptable and what is not acceptable within our newly constructed democracy. So racism, sexism and other forms of bigoted conduct or speech are unacceptable, but vigorous deliberation on all manner of public controversy is acceptable. As Judge Ngcobo reminds us, the Constitution informs not only individuals, but the nation and government of what is acceptable public discourse and conduct.
If that is the yardstick, then the torture of political opponents, the systemic dismantling of all democratic institutions, the forcible silencing of all dissent and the redistribution to cronies rather than to starving masses should be totally unacceptable. By contrast, the government’s initial reaction in its leadership position at the UN Security Council is to make technical points about the appropriate forum in which the Zimbabwe crises should be debated. There is little indication from government that the Mugabe regime’s conduct is totally unacceptable.
By this omission, not only do we squander the international moral leadership that we earned from the struggle for and attainment of democracy, but we also imply that our constitutional commitment to the primacy of human rights is easily trumped by the grubby moves of politics.
The public reaction to the government’s priorities in this area indicates the potential for the construction of unwritten rules that could be recognised by the population, no matter the political pedigree. However, the government continues to ignore this possibility. Human rights and democracy feature low on its list of how our nation should comport itself. In this way, the government reduces the chance of the construction of national ground rules.
Our Constitution seeks to inform all public and national conduct. In this way, the values underlying it become shared by so many that the government itself will be cautious before acting contrary to its text or spirit for fear of overwhelming public censure. Once its scope is limited by the kind of argument touted in government circles that prioritise politics above principle, the chance of developing an agreement of what is socially acceptable disappears. Torture, political oppression, corruption are given a fresh spin and before long we are so divided that there is no constitution left to share.