/ 27 April 2023

The time for constitutional review has come

On balance: The Constitutional Court must decide if statements about Zionists by a Cosatu member were hate speech or political utterances
File photo by Delwyn Verasamy/M&G

Africans have been fighting colonisation for more than 300 years. Throughout these years, the main goal has been the attainment of a more dignified existence, with the ability to determine one’s future, free from external influence. Central to the fight against colonisation, particularly before 1948 and long before the formation of any political organisation, was — and still is — the fight for land.

In 1994, South Africa saw the transition from apartheid into a new “free” South Africa. Although freedom has often been divided into two main subcategories, political freedom, and economic freedom, some have advanced the argument that in 1994, South Africa only officially won the struggle for political freedom but was  not free in practice. This question has often gone uninterrogated by many South Africans. This is because South Africans have reduced political freedom to the right to vote. 

However, political freedom is more complex than that. Political freedom should include the right to determine one’s destiny and the right to determine the Constitution and policies — free of external pressures and influence. 

There are major policy positions and decisions South Africa cannot take or associate itself with because of external influence in internal politics. An example of this would be the land reform issue: Almost 30 years into democracy, the ANC-led government has failed to properly deal with the issue of land, which is the cornerstone of our struggle. The main reason the government has failed to deal with this is the fear of bearing sanctions, possible expulsion from the Commonwealth and rating downgrades.

It is critical to understand that if a government cannot deliver to the needs of the people, because of threats from their former colonial masters, then that government is not free nor are the people it represents. So, as long as we still look for the colonial master’s approval, we cannot call ourselves free men and women, politically or economically.

South Africa is a constitutional democracy; this means that we refer to the Constitution as the starting point of any discourse about true liberation.

The 1996 Constitution, guarantees many positive rights — such as the right to life and dignity — which did not exist before 1994. However, the Constitution still falls short in ensuring the full enjoyment of the fruits of democracy. 

This manifests in: poverty, landlessness, homelessness, indignity, powerlessness, skewed life chances, dilapidated infrastructure, exploitation and marginalisation, incarceration and limited access to basic healthcare and quality education. 

The 1996 Constitution was drafted as a result of a negotiated settlement, a document that was meant to safely transition South Africa from apartheid into a democratic dispensation. The result are countless compromises made to the former apartheid regime, compromises which have outlived their purpose. 

Consequently, we need a constitutional review process to address the shortfalls in the Constitution. We need an Africanist Constitution that will work on a pro-African value system. Ubuntu must be the central theme of our Constitution so we can efficiently address all the issues currently affecting South African ubuntu. 

Some of the most urgent constitutional amendment proposals, in no particular order, should include the following:

Section 19 (3) (b) on political rights:

The right to stand for public office and if elected to hold office should exclusively be reserved for South African-born citizens or citizens with South African-born parents, to prevent foreigners-turned-South African citizens through home affairs processes from being eligible to become President or premier in a country to which they have no ancestral attachments.

These rights enshrined in section 19 should also not be extended to citizens who have dual citizenship. No one with split loyalties should be entrusted with the responsibility of leading South Africa in high office, as that may and will present us with serious problems we cannot escape. An example of this is Democratic Alliance MP Natasha Mazzone should not be able to participate in all activities of parliament because of her dual citizenship. 

Section 22 on freedom of trade:

This provision should explicitly mention trading in human beings. This will allow the Constitution to take a more explicit stance on human trafficking while allowing the government the ability to deal with the issue of labour brokers.

Section 25 (7) on the colonial clause:

The cut-off date to address land dispossession should be moved back to 6 April 1652 when Jan van Riebeeck first set foot in this country instead of 19 June 1913 to properly address the original sin against our people.

Section 235 on the apartheid clause:

This provision deals with the so-called right to self-determination, giving rise to internal separatist states such as Orania, Kleinfontein and Eureka, and needs to be struck off completely if we are serious about one South Africa for all her citizens.

Section 39 (2) on customary law:

The Constitution recognises customary law as being of equal status as common law. However, in practice common law often takes precedent. Judges often use common law. As a result, customary law needs to be codified so it can have an elevated status to common law in practice.

More could be done to further improve our bill of rights to meet the modern-day economic challenges of South Africans.

Combating the shortfalls of our government and the Constitution requires a multifaceted approach. To address the economic plight of many South Africans, the following rights must be added to the bill of rights: 

  • Every adult citizen should have the right to a useful and remunerative job. A job should not be a privilege but a right, considering the disastrous effects of unemployment and poverty. 
  • Every citizen should have the right to earn enough to provide adequate food for themselves and their family. The bill of rights ought to also consider the right of every business, large and small, to operate in an atmosphere free from unfair competition and monopolies. 
  • Moreover, every adult citizen must have a right to a bank account, particularly to address money laundering that has contributed to the grey-listing of the country.

The time of lamenting about how backwards we have gone is over. We are now challenged with the responsibility of moving forward. And to do this a constitutional review is urgent — to fix the foundation.

Vuyo Zungula is the the president of the African Transformation Movement