Last week, the Friedrich Ebert Foundation sponsored a conference focusing on the first 20 years of the Constitution. Many of the significant constitutional players of the past two decades were in attendance and, fittingly, there were candid discussions of the failure of the legislature and the executive to implement the vision of the Constitution in its full promise. There were also considered reflections on the lessons that could be learnt, not only by South Africans, but also by citizens of other African countries.
There is nothing inherently wrong with such a conference. But, as appears to be the case with similar conferences that have been held or are to be held to commemorate the 20th anniversary of the Constitution, the agenda and the consequent discussions take a predictable direction. The Constitution is a magnificent document, reflective of an egalitarian, nonracial, nonsexist, non-homophobic society — which will be constructed if the route map of the Constitution is followed.
By and large, the courts in general and the Constitutional Court in particular have performed admirably.
Exhibiting a muscular independence, the courts have held the executive and the legislature accountable to the rule of law as compressed in the constitutional text, and they have shifted the focus away from negative rights only (protection from discrimination on the grounds of race, gender and so on) to the possible vindication of positive rights, including the right to housing, medical care, water and education.
By contrast, the executive and legislature have performed far less admirably. They have failed, inter alia, to ensure the provision of basic social and economic goods to the poor and have refused to adhere to basic principles of the rule of law, as shown by several celebrated cases, and by allowing corruption to become a cancer in the body politic. None of these observations are incorrect. But the agenda reflects a foundational problem: the broader debate outside the confines of conferences is generally taking place in a binary construction.
On the one hand, the Constitution is presented as a near perfect document, which, when implemented, will usher in a meaningful democracy; on the other, the Constitution is a Eurocentric document that preserves ill-gotten white gains.
In short, the debate, as reflected in some of the mainstream media and particularly in social media, is between constitutional fundamentalists and constitutional denialists. Conferences such as the abovementioned event reflect the former, with much made of how the constitutional negotiations were a miracle that produced a utopian roadmap — as well as speeches that echo Spike Milligan’s Hitler: My Part in His Downfall. By contrast, read the populist critics and you will find the Constitution blamed for the tardy progress of land reform and the continued dominance of white capital.
We are stuck in this binary. If South Africa is to move forward in meaningful conversation about the future of the constitutional project, a far more nuanced debate is required. To be sure, conferences that commemorate the 20-year milestone do discuss corruption and the failure of the delivery of basic services. But moaning is regarded as a substitute for a meaningful political or intellectual intervention.
A few examples of an alternative debate must suffice in the limited context of a column. The Constitutional Court’s obsession with reasonableness as a test for determining whether government has complied with its constitutional obligations to deliver basic goods and services has led to a legal cul de sac. Socioeconomic rights litigation has been rendered almost impossible as a consequence of this set of precedents.
That most admirable of legal activists, Section27’s Mark Heywood, has raised the question of constructing the national budget to prioritise the delivery of basic housing, education, water, food and medical care. Why is this not the subject of serious debate on this anniversary?
From the outset, the conservative nature of South African legal culture dominated the Constitutional Court’s approach. Whereas other countries sought to develop easy and accessible ways for poor litigants to approach a court to enforce their constitutional rights, South Africa continued with the previous rigid formalism. For poor litigants (read the majority of the country), except for access to one of the few heroic nongovernmental organisations, a poor person cannot gain access to the courts. How this most important of components of the rule of law does not obtain pride of place at a conference dealing with the Constitution beggars belief.
The Constitution promises the establishment of a society based upon, inter alia, nonracialism, nonsexism and non-homophobia. But, given the intensity of debates about race, identity remains a core issue. One does not have to have read Frantz Fanon to realise that, if the Constitution is ever to gain widespread legitimacy, a new South African identity must emerge. Again, the legal aficionados, whether in academic life or in practice, appear to avoid this question.
South Africa is unquestionably in a far, far better space than could have been imagined when we were in the grip of the racist regime that ruled until 1994. But there is much that remains to be done, and constitutional fundamentalism accompanied by a poverty of legal imagination is hardly the stuff to meet the populist challenge. Hopefully, by the time we get to the 25th anniversary, a new generation will be up for the challenge.