In addition to the consequences of the deepening phenomenon
of lawfare, another set of challenges to the constitutional project has
emerged, namely the fact the Constitution itself has become an object of
criticism by those who see it as an obstacle to transformation.
This thinking that the Constitution prevents social and economic change, particularly as it is a Eurocentric document, is unsurprising, given the slow pace of economic transformation (radical or otherwise) the country has seen over the past two decades. Some of the content of this line of attack has been around from the inception of the Constitution, but the volume and intensity of this form of discourse has increased since 2008.
In responding to this criticism, it is wise to recall the text of the Republic of South Africa Constitution Act of 1996, which boldly proclaims that the country aspires to be a non-racial, non-sexist society based on the core principles of freedom, dignity and equality. To achieve this, we were to destroy the myth of racialised cultural and economic superiority that prevented us from claiming a fresh identity as South Africans. As Cameroonian philosopher Achille Mbembe has argued, democracy was dependent on this construction. If we could not break the myth and replace it with a new form of citizenship, the very enterprise set out in the Constitution was fatally doomed.
Now, however, there is a growing chorus claiming that the Constitution was employed by recalcitrant whites to subvert majority rule. This mode of attack, located at the margins of politics back in 2008, is now assuming increasing importance in the national discourse. It sees the Constitution as a compromise aimed at preserving so-called white monopoly capital, and casts Mandela and his team of negotiators as sell-outs of their people, especially on the question of land redistribution and apartheid restitution.
The argument is that the constitutional promise preserves the ill-gotten gains obtained during apartheid. The slow, almost non-existent, pace of meaningful land reform in particular has proved to be fertile ground for casting the Constitution as the obstacle or, worse, the mechanism to retain apartheid-era economic and ownership structures of land and other productive assets.
What is most apparent in the ongoing debate regarding land reform is that the Constitution is now labelled as part of the problem. We say that it is rather the seeming absence of a coherent land policy implemented with determination and expedition that is the source of the present crisis in land restitution.
Assume away the property clause, Section 25 of the Constitution, and we would be in the same factual position. The land reform problem is political, not constitutional. The same observation is applicable to the stark patterns of inequality, the grinding poverty encountered by millions and the structural racism that continues to blight this land – unaddressed by government. These are not the products of the Constitution.
Even ignoring the deployment of the hollow Bell Pottinger catchphrase 'white monopoly capital', spouted as a response to the nation's vocal rejection of state capture in South Africa, the government's failure to address the disgraceful material conditions of poverty and landlessness in this most unequal of societies is evidence of the failure of the ANC government to fully realise the transformation promised in the Constitution.
An academic version of the line of argument that the Constitution is the problem has been developed by University of Pretoria academic Joel Modiri. In a series of articles, Modiri argues that, while the advent of a new constitutional order did alter the moral and political foundation of the country, there can be no guarantee that the Constitution will not reproduce a formalist and conservative legal culture. It is also based upon the assumption that Western liberal constitutionalism is superior to African alternatives. Thus, the South African Constitution represents a Western (and hence colonial) order of legal knowledge that 'suppresses and marginalises indigenous African ways of knowing and doing law'. In similar fashion, Tshepo Madlingozi claims that the call for a supreme Constitution and a Bill of Rights came overwhelmingly from whites 'with a view to keeping the main edifice of the anti-black bifurcated policy intact'.
These critical voices call seriously into question the possibilities of which many spoke when the Constitution passed into law; hence they require a careful response. In fact these criticisms necessitate two related replies: to the attack on the failure to transform the economic structure inherited from apartheid and to the contention that, far from being the poster child of progressive constitutionalism, the South African text is wholly inappropriate for an African country.
Is the Constitution a Eurocentric imposition or a uniquely South African achievement? Will it inevitably retard the structural changes needed to achieve a substantive model of democracy, as claimed by its antagonists and energetically denied by its proponents? These are questions that now bedevil the political and legal debate.
In summary, we now need to revisit the role of the judiciary in a constitutional democracy grounded in South African society. But we cannot do this without an answer to a prior question: can our Constitution promote substantive structural change to achieve its proclaimed vision, a non-racial, non-sexist democracy based on freedom, dignity and equality for all?
Just as economic sanctions hastened the end of apartheid, can and will downgrades to junk status, coupled with years of stagnant growth and debilitating youth unemployment, herald an irresistible opposition to constitutional democracy? Is it then correct to blame the Constitution for our recession? Our unemployment? Our deindustrialisation? Our failing schools? Our inadequate healthcare system? We say not.
That redress of the past and adequate protection for those on the margins have not taken place is undeniable. We would argue that the blame for this political, or indeed legal, failure cannot be placed on the Constitution. On the contrary, read in at least one coherent manner, the Constitution seeks a society in which democracy means far more than a formal adherence to the economic or social status quo.
This reading resists the idea that the Constitution, no matter from where particular words or phrases in the text were borrowed, will reproduce a society wrenched from its African roots. To repeat, for us, the animating constitutional idea was, and should remain, the creation of a society based upon a new South African identity, which eschews the claim of white superiority in any form, or the concomitant idea that only Western ideas are to be employed to fashion the new society.
We need to admit that the conservative legal culture bequeathed to us by our colonial past and a regrettable poverty of legal imagination in too many cases have contributed to the lack of transformation of key legal rules, which continues to be an obstacle to substantive economic and social change. This must then lead to a discussion of the role of the law and courts in the attainment of this objective.
* This is an extract taken from Lawfare: Judging Politics in South Africa by Michelle le Roux and Dennis Davis, published by Jonathan Ball Publishers.