Editorial: Constitutional Amendment Bill on land is a spectacular and expected failure

The failure of the proposed amendment to section 25 of the Constitution is a spectacular failure of common sense. Perhaps even a farce. A change to the Bill of Rights is so serious an undertaking that the Constitution imposes a high threshold of 67% of MPs voting in support. Where the founding provisions are implicated, a supermajority of 75% is required to support any amending Bill. 

When the governing party introduced the 18th Constitutional Amendment Bill, it must have been apparent to it that the Bill would lose, having failed to secure an agreement with any other party beforehand. It explains why President Cyril Ramaphosa didn’t bother pitching.

Some people will — not without justification — view the entire exercise with cynicism. They would see this as an ANC political ploy, to outflank internal and external opponents. Unpalatable as that as a conclusion might sound, it can be fairly made. There is no shortage of  people making claims about a radical shift to one thing or the other in this country. 

The justification for the amendment was always premised on shaky grounds. When the proposal to amend the Constitution to provide for expropriation of land without compensation first surfaced at the December 2017 ANC conference, it was perceived as an instrument to fast-track land reform. Yet, as land experts pointed out, the failures of the land-reform programme are explained by state failures; corruption; and, yes, economic and political structural constraints. 

There was then a shift. A new mantra, which surprisingly made it to the actual text of the 18th Constitutional Amendment Bill, stated that the amendment intended to “make explicit what is implicit” in section 25 of the Constitution. The question, of course, was why amend if only to achieve what is already contained in the Constitution.

Yet there is a positive edge to the story. It should signal a return to the path of constitutionalism: a return to the essence of section 25 of the Constitution and the reason we have this founding document. The design of our Constitution promotes the transformation of property relations from an apartheid and colonial past to a future based on social justice, the rule of law, human dignity and freedom. Section 25 provides for the right to restitution of land on the part of past victims of land dispossession, imposes a duty on the state to facilitate access to land on an equitable basis, and allows the state the right to expropriate land in the public interest or for public purposes. 

Sure, the exercise has illuminated the need to end the pervasive ignorance about what the Constitution actually provides for. Now more people have been educated about the structure and text of the Constitution. Land scholars have argued that, on a proper interpretation, at any rate, section 25 of the Constitution allows, in certain instances, to be decided judicially or in legislation, for expropriation without compensation.

It should be clear that the proposed amendment was a misconceived attempt to destabilise the constitutional pillars of society. Any successful land reform must be grounded on a strong legal foundation. Populist ideas, which attack the constitutional foundation of society in the name of radicalism, harm the very interests they purport to protect. 

Now that the ANC’s foray into constitutional wilderness has ended in ruin, we hope the party will recognise the redemptive value of the Constitution and set forth urgently to implement its principles.

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