Unshackle the Constitution from a constricting political culture

Prompted by what US President Joe Biden described as “sustained and alarming challenges to democracy [and] universal human rights” the country hosted the first Summit for Democracy in December last year to address what Biden termed “the defining challenge of our time.” 

His concern is not misplaced. Globally, democracy is facing a deepening legitimacy crisis. Amid the disruptive convergence of powerful megatrends such as globalisation, digitisation, climate change and demographic shifts in ever more unpredictable ways, it appears as if democratic states have been more vulnerable over the past two decades in navigating emergent uncertainties than their authoritarian peers. 

Although living standards remain high, concern is mounting about the gradual erosion of working and middle class livelihoods in longer-established democracies, which has resulted in a deepening chasm between their fortunes and those of affluent elites whose wealth has continued to grow unabated. 

With discontent on the rise and social polarisation becoming a feature in many of these states, political entrepreneurs have exploited public disgruntlement by arguing that constitutional checks and balances are obstacles to improved governance to those most deserving of it. 

This notion has over the past decade gained traction among disenchanted citizens and has given rise to the embrace of “illiberal democracy”, typically championed by nationalist strongmen who seek to weaken institutional counterweights to the exercise of power.   

Around the world, support is growing for political candidates that project such sentiment. The results of Afrobarometer (AB) public opinion data, gathered in 2021 by the Institute for Justice and Reconciliation (IJR) on behalf of AB, indicates that also in South Africa there is growing disillusionment with the functioning of its democratic system.  

Between 2008 and 2021, satisfaction with democratic governance in South Africa has dropped from a high of 60% to a low of 31%. Just in the course of the past 10 years, this figure has plummeted by 17 percentage points. Probably the most worrying result from this survey is the finding related to support for the idea of a non-elected government that is able to uphold the rule of law and provide quality services. More than two thirds (67%) agreed on the desirability for such a form of government. Of this percentage, 46% indicated that they strongly supported the idea.  

The same survey gauged trust in key public institutions, and a similar picture emerged. With the exception of independent broadcasters and the national broadcaster, the SABC, no public institution recorded trust levels of more than 50%. The long-term trust trajectory for each was downward, with some following a more precipitous path than others. Particularly relevant to the 2022 State of the Nation address that was held last week, are trust levels in parliament, the country’s apex legislative institution. From 54% in 2006, trust levels in the parliament have dropped by half to 27% in 2021. 

These findings do not come as a surprise. In recent years, growing cracks have emerged in the South African governance system. Although there are pockets of excellence, the functioning of the system as a whole is compromised, with some parts verging on collapse. Rolling blackouts and breakdowns in water supplies have become frequent occurrences; poor road, rail and port infrastructure is hobbling an already struggling economy and the July riots in KwaZulu-Natal and Gauteng underscored the state’s difficulty to uphold the rule of law.

What is to blame for the apparent malfunctioning of the South African governance system at a time when predictable policies and a competent public service is so urgently needed? In a recent policy paper released by the IJR in anticipation of the 2022 State of the Nation address by President Cyril Ramaphosa, the authors have contended that while a number of historical and current global contextual factors are constraining the state’s room to manoeuvre, much of its current woes stem from the consequence of an unhealthy confluence of the ruling party’s interests with that of the state. 

Some may argue that such a seamless relationship between state and party, particularly in a developing state context, could accelerate the efficiency with which a state can respond — the argument that proponents of illiberal democracy may forward. This is theoretically possible if the ruling party is internally coherent and acts on a strong vision. If not, as is the case in South Africa, a society becomes vulnerable and bears the brunt of party inconsistency and malfeasance, as highlighted in testimony delivered before the Zondo commission of inquiry into state capture. 

In light of this, the authors contend that calls by government ministers for a complete constitutional overhaul may be premature. Although it is not uncommon to amend or rewrite constitutions, as is the case with the current review of the Chilean Constitution, such changes should only occur if the deficiencies lie in the letter and spirit of the country’s first law. 

If not, reform should occur to effect its proper implementation. We are of the opinion that the latter is called for. It is time to unshackle the South African Constitution from a constraining political culture to unleash its full potential to improve the livelihoods of all South Africans. This is our defining challenge.

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Jan Hofmeyr
As programme head for Research and Policy, Jan Hofmeyr forms part of the Institute for Justice and Reconciliation’s core management team and serves on the senior advisory team of Afrobarometer, a continental public opinion survey initiative that is located in the IJR.

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