/ 24 June 2021

Born in jubilation, South Africa’s constitution faces a test 25 years later

A new philanthropic fund will have a vital role to play in strengthening constitutionalism in South Africa.
Democracy is everyone’s responsibility to defend. Now is a critical time to double up efforts to guard this nation’s constitutional integrity.

It has been 25 years since South Africa’s supreme law was approved by the constitutional   court on 4 December 1996 and signed into law by president Nelson Mandela at Sharpeville, Vereeniging. 

The signature date, December 10, was significant because it marked International Human Rights Day. The location was equally symbolic. The Treaty of Vereeniging between the British and Afrikaners that disenfranchised the black majority was signed there in 1902. Decades later, on 21 March 1960, it was the site of the Sharpeville massacre, a historical event in the struggle for democracy.

South Africa’s Constitution is internationally acclaimed because of its extensive Bill of Rights — described as the cornerstone of democracy in Chapter 2, section 7.1. Recent political developments, however, and particularly those that involve influential personalities in the ruling ANC, have threatened the constitution’s foundation. Rampant corruption by high office holders has contributed to increased poverty levels, further widening the gap between the rich and the poor. 

South Africa has demonstrated that having a great constitution does not translate to having systems that work. South Africa’s Constitution establishes institutions such as the office of the public protector, to serve the interests of the public by overseeing government affairs. Despite the existence of such institutions, it took several years to acknowledge the biggest corruption scandal in South African history — state capture

Allegations of abuse of state funds and deviation from constitutional mandates by the State Security Agency as it reportedly fought ANC’s internal factional battle date as far back as 2009 only recently came to light during testimony before the Zondo commission. One wonders how this could have gone unnoticed by the institutions meant to provide oversight. 

It is even more concerning that some of these institutions’ independence has been brought into question amid allegations of politicking by some of the office holders. The previous public protector, Thuli Madonsela, was allegedly linked to an agenda to discredit former President Jacob Zuma during his tenure, while the current public protector, Busisiwe Mkhwebane, is said to be biased in favour of Zuma. Mkhwebane is facing charges on three counts of perjury linked to her dealings with Zuma. She also faces possible impeachment following questions about her fitness to hold office.

South Africa’s constitutional democracy is undergoing a real stress test. Allegations of state capture have further divided the ruling ANC — leading to disregard for the rule of law by some of its biggest influencers. There is a line of thought that argues that the state capture inquiry is only targeting one faction of the ANC — Zuma and his allies. 

Zuma recently refused to honour a constitutional court ruling to appear before the commission, citing its lack of impartiality. His allegations that the judicial system is rigged is just one sign of the factionalism in the ANC. This is not only a problem for the ANC; it is also a potential threat to democracy, particularly when it interferes with the rule of law. 

South Africa’s brand as a beacon of democracy and an agent of change in Africa has been tarnished by the actions of a few powerful elites in a divided ruling party. The process to hold these accused to account is in motion, but it was left too long and is progressing too slowly. How can this coterie of politicians trample on a celebrated progressive constitution and still get handled with kid-gloves? South Africans are anxious to see whether Zuma and his co-accused will be held to account.It is incumbent on democracy and human rights stakeholders to defend the fundamental law of the country. Like the long struggle for South Africa’s freedom, it will take coordinated and well executed initiatives to reverse the damage that has been inflicted. Although civil society organisations and the media have brought attention to these problems, a more coordinated and collaborative approach is needed to strengthen the fight against those who undermine the constitution. The recently established Defend our Democracy Campaign is a great start. This is a coalition of individuals and entities trying to rally citizens to defend the country’s constitutional values. It is a noble cause but needs to be sustained and publicised. South African media have been at the forefront of keeping citizens informed about abuse of office, corruption and, most recently, the threat to constitutional democracy. The media must continue this important work. As Mandela once said, “A critical, independent and investigative press is the lifeblood of any democracy.”