ANC, EFF policy differences on land expropriation hinder constitutional amendment

Land reform (Photo: iStock)
Land reform (Photo: iStock)

The policy battle lines on land expropriation without compensation were clearly drawn recently when President Cyril Ramaphosa answered questions in the National Assembly. 

Julius Malema, leader of the EFF – a party that wants to nationalise all means of production, maybe except oxygen – rose to ask a question which summarised the party’s policy position. If “our people” were given title to the land, Mr President, don’t you think they will be bought off the land by those with deep pockets? Is it not better for the state to own all land so that it safeguards it on behalf of all the people? I’m paraphrasing what was at the heart of Malema’s question. 

Malema was advocating for a nanny state that would know better the interests of the people because they presumably wouldn’t know what’s best for themselves. In response, Ramaphosa said “our people” have deep yearning to own their land. In Ramaphosa’s answer, one could sense that he believes people, not the state, were better placed to articulate their own interests as individuals. Surely, that’s what freedom is about – the ability to use or trade in an asset you call yours. There is dignity inherent in this.

Malema and Ramaphosa are advocating sharply different policy positions. While Parliament’s Constitutional Review Committee hears submissions on the controversial proposal to amend the Constitution, the policy differences of the ANC and the EFF suggest that a constitutional amendment will not succeed – unless either party is willing to bend over backwards to accommodate the other. 

The ANC wants to amend the Constitution to clarify the circumstances under which expropriation should be implemented. From this perspective, we should expect the ANC version of an expropriation clause that has many conditionalities. It would be a “last-resort” type of expropriation. The EFF, on the other hand, wants expropriation of all land without caveats – a clear proposal of nationalisation. The EFF’s position is a “first-resort” type of expropriation.

For a constitutional amendment to succeed the EFF and the ANC will have to vote together to secure a two-third majority in Parliament. Their different policy positions suggest that this would be unlikely. The next battle will therefore be in the detail on how the committee phrases the amendment. It is when the committee reaches the drafting phase that the ANC and the EFF are likely to lock horns, even before the matter is put to a vote in the National Assembly.

The ANC’s ideas on expropriation do not need a fundamental constitutional change. They can be put to effect by adding a clause in the Constitution that says something to the effect that “Parliament shall pass legislations to regulate expropriation without compensation in the public interests under clearly defined exceptional circumstances that are in line with the Constitution and subject to the owner of the land reserving a right to seek judicial recourse”. 

This would ensure that expropriation is not an automatic process that can be implemented randomly or arbitrarily as populist measure by whoever is in government to compensate for their incompetence and failure to fulfil electoral promises. Such an amendment should be followed by the legislation itself within a short period of time so that there is no further policy uncertainty.

It should be clear that property rights are at the heart of South Africa’s modern economy. And, whatever legislation is drafted to give effect to this or whatever expropriation acts arise as a result of the legislation should be subject to judicial review. Any attempt to change the Constitution in a manner that will erode property rights would actually harm the very same “our people” it is supposedly intended to benefit. It would make the “Nene Effect” – the economic calamity that followed Nhlanhla Nene’s dismissal from Cabinet by the Guptas – look like a negligible event. 

As for the nationalisation agenda, the EFF would have to wait to win an election to implement such draconian policies. It would be an exceptional policy victory in global political history, one deserving of a mention in the Guinness book of records, for a party of 7% electoral to fundamentally overhaul an economic system of a country. 

The ANC’s increasingly moderate position on land reform is as a result of rational discussions between its leaders and key players in the agricultural sector in the past few months. Agricultural industry organisations representing both black and white farmers have held meetings with senior ANC leaders where both sides seemingly cut out the noise and focused on the real challenges of land reform. 

If recent public pronouncements by the ANC and leaders in the agricultural sector are anything to go by, a sensible policy stance of land reform could be on the cards. But no sensible policy would work if the state institutions meant to fast-track land reform are hobbled by corruption and incompetence. 

Much of the land reform failures thus far can be attributed to state incapacity to implement existing policies and the failure to pour resources to ensure available land is put to production. There is a risk that constitutional tinkering without capacitating state institutions could simply raise expectations for quicker land redistribution. And if expectations are not followed by recognisable changes, the call for nationalisation would ring louder in years to come.

- Mkhabela is a political analyst with the Department of Political Sciences at the University of South Africa.

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