The passing of 20 years since FW de Klerk’s monumental speech, which so radically altered the political landscape of the country, has provided the occasion for much public evaluation of our constitutional progress.
The leader of the Democratic Alliance, Helen Zille, has spoken of an assault on the Constitution in recent times as a result of what she contends is the hegemony of Jacobins within the ANC who allegedly conflate party and government. In Zille’s view, this dominant group has no commitment to the fettering of government power through the Constitution.
This is a dramatic attack, contrasting sharply with a thoughtful Âopinion piece published last week in this newspaper that warned against a lazy conflation of the constitutional crisis of the 1950s with the turbulent climate encountered by the judiciary during the period of the Zuma prosecution.
On this line of argument, constitutional democracy is in health, although perhaps not in the rude health that many would prefer. Further, stormy political discourse is not restricted to the debate about the South African judiciary. It is increasingly prevalent in all countries where courts are called upon to adjudicate a wide range of politically divisive disputes.
What to make of this? That there are disturbing signs cannot be overlooked. Last week two such instances caused some concern, at least to this generally optimistic contributor. Mokotedi Mpshe, the erstwhile acting national director of public prosecutions, who initially charged Jacob Zuma and then, with some help from Hong Kong texts, dropped the charges, is to be appointed an acting judge of the high court.
The perception, at least, is that this appointment — which holds the possibility of a permanent appointment to the Bench — is eerily similar to the appointment of attorney general Braam Lategan to the Cape Bench about 30 years ago, following his membership of the Erasmus Commission, the findings of which led to the downfall of BJ Vorster and the rise of PW Botha to prime minister and later president.
In similar fashion I watched a TV debate two weeks ago in which Mathole Motshekga, the ANC chief whip, resisted a proposal to introduce legislation to guide the presidential decision to pardon prisoners. There is legal justification in an argument that defers to the executive, to the effect that legislation may not curb a prerogative power granted under the Constitution. But an informal though published protocol, setting reasonable guidelines for the making of a presidential decision, which, by its nature, overrides the judgment of the courts, would be in keeping with the principles of transparency and accountability, so central to our constitutional scheme.
But Motshekga argued that the Constitution gave the president an unfettered power and more than 11-million voters had supported the president. Thus, it appears the argument runs: we should respect a democratic choice and so accept the authority of the president and trust him in the way the majority did when they elected him.
It may be that this is not the implication intended by the chief whip, but it flows from his argument. And if this is the approach to the relationship between the executive and the Constitution, then there is cause for some alarm that a culture of authority is gaining ascendancy over the culture of constitutional restraint upon unfettered power.
On balance, the dramatic claim of crisis is less justifiable than the more cautious conclusion that warning signs should be heeded that the forces in favour of constitutional democracy need to be reinforced. In the same week as the Zille speech and Motshekga interview, retired chief justice Pius Langa spoke with typical perception about the most pressing challenges to our constitutional future. Without sustained delivery of the social and economic promises contained in the Constitution, the legitimacy of the enterprise may erode.
The chief justice has placed his finger on the core problem. The transformative vision of the Constitution demands that we construct new national narratives around race, gender and class rather than live with those inherited from apartheid. This cannot be accomplished when the economic and social basis of the society remains essentially the same as that inherited 20 years ago.
Yet without a systemic change to the provision of education, construction of community and basic infrastructure, increasing numbers of South Africans will languish in grinding poverty and loss of hope. In turn, that will turbocharge the growth of the present strain of populism and Kebblelism that is the very antithesis of the constitutional blueprint for the country.
Expressed differently, the country must implement a vision that extends substantive citizenship, particularly to the millions of South Africans who are under 30 and who languish in unemployment and encounter insurmountable obstacles to the even partial implementation of their dreams. If not, then deliberation, reason and even the most basic constitutional consensus will be swamped by authoritarian populism — the very antithesis of both the Freedom Charter and the Constitution that followed it.