Constitution not up for politicking

2014-01-20 10:00

The document should be seen as almost sacred, writes Mondli Makhanya

It is very rare to witness Naledi Pandor saying something out of character. The Home Affairs minister is regarded as one of the most principled, erudite and effective leaders in government and in the ANC.

So she is the last person you would expect to see jumping on some populist bandwagon.

Last week, she did just that when she had to answer a question that ANC spokesperson Jackson Mthembu and presidential spin doctor Mac Maharaj had tactfully deflected.

The question related to President Jacob Zuma’s campaign trail appeal to voters to give the ANC an increased majority so it can change the Constitution.

“We want a huge majority this time because we want to change certain things that couldn’t be changed with a small majority so that we move forward because there are certain hurdles?…?People talk about a constitution they have never seen. We saw that constitution,” Zuma told supporters in Mpumalanga.

With neither Zuma nor his office clarifying which part of the Constitution needed surgery, the media sought answers from other senior ANC leaders.

Pandor’s response, like that of several of her colleagues, was that we should not get overly excited about the president’s comments. Defending her principal, she said constitutions are changed all the time to take into account changing dynamics as societies evolve.

Technically, she was correct. The US Constitution, the world’s most famous, has had 27 amendments made to it since it was adopted in 1787. Other constitutions around the world have also been altered from time to time. Ours has been amended 17 times to plug gaps and formalise provincial name changes.

But the nature of these changes, whether here or elsewhere, was to strengthen constitutions and not to remove safeguards. They have been made after exhaustive processes – including court cases and society-wide constitutional reviews – during which it was established comprehensively that an amendment was the only way forward.

The loose talk coming from Zuma and some anti-constitutionalists in the ANC presents the Constitution itself as a problem and as an impediment to progress and redress.

They have argued – without any facts – that parts of the Constitution are a constraint on the state’s ability to deliver to the masses and effect transformation.

They have made wild statements that portray the Constitution as an enemy of the people and the cause of their continued economic oppression.

Some have asserted that ours is a compromise constitution that had to be adopted to appease the National Party and whites in general. They say this knowing full well that the bulk of the Constitution is premised on the constitutional principles adopted by the ANC in 1991.

They are also fully aware that the final document was passed by a democratically elected and ANC- dominated National Assembly in 1996, two years into democracy.

This anti-constitution populism seeks to mask the real problem: weak political will and the state’s lack of capacity to deliver. These are all man-made problems and have no origin in the Constitution.

They can be solved by building a more capable state and appointing to office people who have the political cojones to use the available budget and existing legislative instruments to deliver to the people and effect change.

But the ANC is not alone in its short-term approach. The very opposition parties who decry the hostility of some in the ANC towards the Constitution are guilty of exactly the same sins.

Frustrated by their inability to tame the ANC’s dominance of South African politics, they have been demanding a change to the electoral system.

Some want to move away from proportional representation to a Westminster system of directly electing MPs, or a hybrid of the two. Others want South Africa to adopt a US style of directly electing a president rather than having the head of state chosen by Parliament. It is argued that this would make MPs and the president directly accountable to the voters rather than to their parties.

There is merit in this argument but it is not necessarily the solution.

Some of the most unaccountable governments in the world are elected directly by the population, while some of the most accountable are those elected by the system of proportional representation.

In this country, we have ward councillors who are chosen by the people but who still neglect their duties. The community then turns on them – often violently. The US presidential system, which some want us to copy, recently produced a man called George W Bush.

So to suggest that we should effect constitutional changes for short-term political goals is ludicrous.

The ANC will not always be as dominant as it currently is. Its liberation halo is fading fast and it will soon be seen as just another political party.

Politics will normalise as voters make the kind of rational and irrational choices that electorates make in all democracies.

If we do stupid things now and make rash decisions about our electoral system, we will have radically interfered with the sacred document just because political parties see this as an easy way to contest the dominance of the ANC.

The desire to interfere with the Constitution is no different from suggestions like those that would drag us back to the days when the state used to hang people, teachers could wallop children and when women had to resort to life-threatening backstreet abortions to terminate unwanted pregnancies.

South Africans need to see the Constitution as something almost as sacred as the New Testament, the Qur’an or the Torah.

» Makhanya is editor at large

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