Tourism Minister Lindiwe Sisulu’s three opinion pieces published over the past two weeks have courted enormous criticism, including chastisement from the acting head of the judiciary, Deputy Chief Justice Raymond Zondo.
Denunciations range from arguments that point to lack of substantiation for her views to complicity in policy failures that she identifies in musings flighted on the digital platform, Independent Online.
Responses to her penning describe the articles as an opening salvo in a campaign to reach the ANC’s highest office in December.
Triggering the greatest indignation is Sisulu’s attack contained in her first contribution on the Constitution, the rule of law and the country’s judiciary.
Disappointingly, besides accusations of political opportunism, there is little attempt in the criticism to characterise the politics that undergird the views expressed in the op-ed and the rejoinders from Sisulu to Mavuso Msimang and Ronald Lamola.
Unless we describe the distinctive nature and name the politics that inform the ANC minister’s views, we may not be able to productively converse with the thousands who share or support her perspectives.
At the centre of Sisulu’s politics are four features – political inauthenticity, scapegoating as a method of acting out one’s politics, a retreat from progressive universalism and political incivility.
Her assertion that colonialism, segregation in the US, Nazism and apartheid were legal, lays the basis for questions that she poses: So, what does it mean to have a rule of law? And whose law is it anyway?
For her, the post-1994 Constitution has “done little or nothing for poor people”.
Pointing to “a sea of African poverty”, the minister cynically refers to the Constitution as a palliative that has “legitimised wrongdoing under the umbrella of the rule of law”.
There is absolutely nothing wrong in raising concerns that Sisulu echoes in her article, of course with facts and evidence. The Constitution and the institutions that it establishes are not beyond scrutiny.
Our fledgling democracy also has no space for constitutional fundamentalism, where the Constitution is a holy writ to be religiously followed and slavishly implemented.
Throughout the globe, there is an incipient movement towards constitutional scepticism, raising questions about how constitutions have weakened democracy and disempowered citizens.
In 2020, Brian Christopher Jones published his book Constitutional Idolatry and Democracy: Challenging the Infatuation with Writteness, in which he challenges the idolisation of written constitutions that are supreme and enforced by courts.
Last year, the book From Parchment to Dust: The Case for Constitutional Skepticism by Louis Michael Seidman, a constitutional law professor at Georgetown University in the US, hit the shelves.
Both books raise questions that were raised during South Africa’s transition and constitutional negotiations, albeit on the margins.
In a response to Msimang, while still raising the enormity of what still needs to be done to build an egalitarian society, she agrees with Constitutional Court judges that the adoption of the Constitution “signalled a decisive break with our past”.
In an open letter to Lamola, she says that the Constitution sets “high standards for our democratic life together”.
Having opened the debate with questions about the utility of the Constitution and the rule of law, her backtracking and inconsistencies in arguments reflect the worst form of political inauthenticity. Politics of authenticity are based on truthfulness.
The second characteristic of the politics that underpin Sisulu’s op-ed article is scapegoating.
At the start of the debate, Sisulu intimated that the Constitution and the rule of law are the causes of persistent inequality and landlessness.
She also blames the Constitution and the rule of law for the emergence and co-option of the new black elite.
In her analysis, there is no mention of the failures of her government that contribute to the problems that she points out.
There is no whiff in her writing on the multitude of challenges that we face – violence, growing depoliticisation, institutional dysfunctionality, corruption and climate emergencies, and how to deal with these.
Scapegoating is an old ruling class strategy to maintain power and privilege.
It is used to generate anxiety or moral panic in society by pointing to certain threats, real or imagined. It is also used for ideological mobilisation.
Scapegoating the Constitution for continuing injustice, class-based inequalities and government failures is a cheap ideological trick.
In our situation, landlessness and poverty can be used to mobilise affected people for nefarious goals.
In the past and in run-ups to ANC elective conferences, we witnessed the “radicalisation” of the organisation. Unfortunately, radicalism disappears like mist when the sun of political office rises.
In decrying what she perceives as the absence of “African value systems and customs of land, wealth and property” in South Africa’s law, and in her accusations that indigenous law “has been reduced to a footnote” in law schools, somehow unfurls the third characteristic of her politics.
In her search for Afrocentric forms of knowledge, there is a retreat from progressive universalism that organisations such as the ANC have historically embraced.
In responding to Lamola, Sisulu uses the authority of scholar Magobe Ben Ramose to argue that the philosophy of ubuntu is incompatible with the principle of constitutional supremacy.
In her initial piece and in the response to Lamola, Sisulu mouths the “culturalist critique” of the Constitution that Firoz Cachalia points to in an article in the SA Journal on Human Rights. Cachalia identifies an emerging discourse that sees the 1996 Constitution as a betrayal of decolonisation objectives.
An important plank of this critique is that the Constitution foregrounds Eurocentric notions of law.
Referencing Mahmood Mamdani’s work, Cachalia alerts us to the complexity of adopting indigenous law as the cornerstone of the Constitution.
He points to ways that the colonial project, in pursuit of subjugation, bastardised categories such as tribe and culture in building customary law.
In his article, Cachalia eloquently looks at the anti-colonial roots of rights, such as equality before the law, that are easily dismissed as Eurocentric and alien.
He shows how in a context where rights were exclusively reserved for white settlers, anti-colonial movements appropriated the discourse of rights and shaped them as weapons in their struggle for emancipation.
The African Claims document of 1943 and the Freedom Charter are examples of such creativity.
The fourth feature of the politics in Sisulu’s interventions is the eagerness to offload a truckload of insults on to those who hold a different view.
She describes them as dishonest reactionaries, insane and intellectually bankrupt individuals who are involved in puerile attempts to blackmail her.
With a spray gun of jibes in her hands, Sisulu lines up against the wall the country’s judicial officers who she accuses of being “too happy to lick the spittle of those who falsely claim superiority”.
For her, staffing the highest courts of the land are “mentally colonised Africans” and “house Negroes”.
In a violent country like ours, expletives and demeaning words used in Sisulu’s opinion pieces have the potential to engender hatred and ignite fires that will be difficult to douse. Unlike the minister’s glowing description of the violent volcano that erupted in July last year as “a massive warning shot”, we need a language that does not fan the flames of violence and hate.
In a country where we are building democratic institutions and culture, we do not need a politician who cites Donald Trump’s anti-democratic insurrection in January 2020 as an example of how power (however undefined) and not democracy or the rule of law matters.
A leader of a party in which contestation and succession have become a life-and-death matter surely has a duty to avoid inflammatory language.
South Africa desperately needs to reclaim politeness and civility as methods of acting out our politics.
Despite the recent belief that rudeness, polemics and incivility are markers of radicalism, politeness has deep roots in emancipatory politics.
In an online essay published in 2017 on why democracy requires politeness, historian Steven C Bullock looks at how in the English Civil War and American revolution, demands for civility were a “powerful challenge to angry and overbearing authoritarian rule”.
As Bullock argues, in their zeal for obedience, autocrats swear, shout and berate.
But politeness based on “respect for other people, sensitivity to their expectations and concerns” is essential for a free and open society. Adept management of what we do and what comes out of our mouths is a prerequisite for a functioning public political sphere.
Welcoming a 1923 workers’ resolution in a Russian factory to ban swearing among themselves, an overjoyed Leon Trotsky wrote about how the move was about personal dignity and part of a struggle for cultured speech.
It is therefore high time for politicians like Sisulu to realise that building a new society demands that, in our debates, we listen to each other and not speedily launch assaults that undermine our protagonists’ dignities.
They must avoid – as happened in the lead-up to the 2007 ANC national conference – being sucked into the vortex of ANC factional politics.
A struggle to renew politics in the country must be at the centre of guaranteeing that the needs of their members are met.
The search for politics of authenticity demands ongoing civic education and the development of an agenda that points to what needs to be defended in the present constitutional dispensation and what needs change.
Recommendations from the Zondo commission on the institutional design of the country’s democratic system may be a starting point in defining a broad civil society constitutional agenda.
Sikwebu is a retired trade unionist based in Johannesburg