Beware Cyril’s whispers in the dark
Obviously, silly season is upon us. Put differently, politicians will be doing their best to try to lure you to vote for them with all sorts of gimmicks ahead of the 2019 general elections. It is important not to have your critical faculties dulled as they misdirect, obfuscate and try to pull wool over our eyes.
The latest example is the late- night announcement this week by President Cyril Ramaphosa that the ANC had taken a decision that Parliament should amend the Constitution to allow explicitly for the expropriation of land without compensation.
There are several things about this announcement that are worth examining.
I don’t know about you but whispers in the dark is not the imagery I associate with “a new dawn”. For Ramaphosa to continue with the Jacob Zuma-like tendency of addressing the country after nightfall, even on an issue that cannot be described as an emergency, is bizarre. The more things change, the more they stay the same.
One of the quickest ways to put distance between himself and his predecessor is for Ramaphosa to always act in the open, both literally and figuratively. The appearances look horrid when we are whispered to late at night, as if he is having a secret affair with us citizens. Do not be afraid of the light, Mr President. I do not want to be under a blanket on my couch with one eye shut when you discuss critical topics with us. Make daytime communication the new normal.
We undermine democratic processes at our peril. It is unfortunate for the ANC to preempt the outcomes of the comprehensive parliamentary process that is underway to gauge what citizens think about the land question.
There is something truly beautiful about seeing the constitutional review committee’s processes playing out across the country. Scores of South Africans have patiently waited in long queues to give input on a range of land reform issues, including whether the Constitution needs to be amended. That process is still underway.
There is nothing unlawful about the ANC having a view on these issues and expressing that publicly. But this announcement does more than express a view on section 25 of the Constitution. It undermines the constitutional review committee’s work by telling the country that the ANC will go ahead and initiate a legislative process to amend the Constitution regardless of the recommendations of the parliamentary committee examining these issues so closely.
Why would the ANC emasculate Parliament? I think the answer is pretty obvious. The ANC has correctly decided that the land question is going to be one of the hottest electoral issues. That is, of course, courtesy of the Economic Freedom Fighters (EFF), who have captured the imagination of large numbers of economically marginalised South Africans by framing its analysis of the material inequities in society in relation to the land question.
This is electioneering at the cost of undercutting the parliamentary process already under way. Adding to the bizarreness of this is the fact that the ANC itself voted in Parliament for the process that is now unfolding in the public space.
We cannot be glib about the nature and significance of the constitutional review committee’s work. We do not have a direct democratic model. We have a complex modern democracy that requires us to set up some pretty costly and cumbersome mechanisms to find out what people truly think and want. It is not every day that a parliamentary committee has the time, space and resources made available to it to go around the country and listen to us.
I think back, for example, to other instances of this, such as when we debated whether or not to allow same-sex couples to be given the burden of becoming institutionalised in the form of, um, accessing marriage. In that case, Parliament did not accept public input uncritically but assessed the views expressed by the public rationally before recommending what the Civil Union Amendment Bill should contain.
But the process still mattered because the policy and legislative agenda of Parliament gain political and moral legitimacy when there is an iterative process of canvassing and engaging public sentiment.
What this announcement from the ANC does is to tell citizens that the constitutional review committee process is just lip service being paid to public participation in the debate on land reform. If that isn’t a slap in the collective face of “the people” I do not know what is.
Ironically, therefore, the ANC’s announcement isn’t an expression of deep commitment to bottom-up democracy. It is the opposite; an expression of the top-down imposition of ideas and plans from Luthuli House. That is what happens when a gigantic and old social movement like the ANC becomes unnecessarily scared of a five-year-old called the EFF.
But the biggest tomfoolery around this week’s announcement is the misdirection the ANC is involved in. Sometimes you must ask yourself what a politician is not saying.
The president did not tell the country that the reason land reform has been shoddy since 1994 is because the ANC-led government never took it seriously. The ANC lacked political will, which stopped it from using the current constitutional text to maximally effect economic justice for black South Africans.
From missing its own targets on land reform to declining shares of the budget being allocated for purposes of achieving a more just and equitable distribution of land and associated land rights, the ANC-led government demonstrated its indifference to the land question. Its track record is there for everyone to see.
This week’s announcement is the ANC engaging in mythmaking. The myth it is creating, and which it wants you to believe as fact, is that the Constitution’s lack of perfect clarity on expropriation without compensation is the most important explanation for why land reform has been shoddy.
That is a legal fiction. The government has, for example, even opted to decline test cases that could long ago have led to settled case law about the proper interpretation of section 25 of the Constitution.
Implicit in this week’s announcement is the myth that, but for fatal vagueness in constitutional language, this government would long ago have dealt with the land question.
How does the language of the Constitution explain declining land reform budgets? How does it explain a decision not to take up juicy test cases in law? How does it explain a lack of comprehensive and hygienic auditing of what land is owned by the state? How does it explain not dealing with the abuse of rural black South Africans’ land rights by the likes of the Zulu monarch, who doesn’t even respect the very law under which the Ingonyama Trust has been operating?
This business of scapegoating the Constitution must stop. I would have been far more impressed if Ramaphosa looked us in the eye and said: “On the land question, we failed you politically. That’s the whole truth, fellow South Africans. Forgive us. Give us another chance to make amends. Here is a plan for doing so.”
But, of course, as Billy Joel reminds us lyrically, honesty is such a lonely word.