The persistent attacks on the Constitution by populists, the incompetent and the corrupt have undermined the public legitimacy of the supreme law, unleashing a breakdown of rule and law generally, allowing competing despotic governance regimes such as customary law, local strongman “law”, and gangster “law” to gain traction as alternatives to the official democratic Constitution.
The Constitution is the overarching framework for all of South Africa. It provides South Africa with a fair framework and set of rules and values – which binds everyone – under which we can solve our difficult problems. It is the foundation stone of our democracy, the unifying symbol transcending racial, ideological and class divides. A Constitution expresses the common values of a country (Frankel Paul, Miller and Paul 2011; Lerner 2011; IDEA 2014). A Constitution shapes a common identity for a country, especially as diverse as South Africa, with a contested past, polarised along race, ethnic and political lines and suffering from historical injustices, inequalities, and resentments.
Former Chief Justice Arthur Chaskalson (2012) said: “The Constitution calls for positive action to confront the apartheid legacy of poverty and disempowerment and build a truly non-racial society committed to social justice. Transformation contemplates an improvement in the lives of people.”
Some ANC and opposition leaders view the Constitution as just any other document, subservient to ANC policies and other governance systems, and therefore open to change. Constitutions are higher laws above ordinary laws and cannot and should not be changed willy-nilly like any other law. The Constitution is, in fact, the “Holy Grail”. South Africa’s Constitution is most certainly the greatest African originated supreme law of the postcolonial era. It would be the genuine African solution for African problems if there were ever any.
The attacks on the South African Constitution have eroded the legitimacy of the supreme law and undermined the Constitution’s ability to serve its function of holding government and leaders accountable. The attacks on the Constitution have undermined it to such an extent to create a public perception. In a country where large numbers of citizens are illiterate, ill-informed, and lack knowledge about the workings of the political system, the Constitution is just like any ordinary law that can be changed at the behest of the governing parties and leaders.
The truth is that the attacks on South Africa’s democratic Constitution are often from leaders wanting to shield themselves from democratic scrutiny and accountability to continue to enrich themselves at the expense of overwhelmingly poor Africans. Failing to take responsibility for their corruption, incompetence, and mismanagement has left many in dire poverty and trying to protect themselves from prosecution for wrongdoing.
Constitutions are higher laws
A Constitution, a country’s supreme law, outlines the system of government, how power is responsibly exercised, the rules of behaviour, and citizens’ rights (IDEA 2014). Kader Asmal (2008), one of the writers on the Constitution, said: “The most important development making South Africa a better place to live in and possibly love is the Constitution, a guaranteed contract between South Africans as to how to organise our public and private lives. The Constitution, the result of an unprecedented national conversation among South Africans, which together with the Bill of Rights, is the bedrock of our freedom”.
A Constitution ensures that governing parties, when elected to power, manage a state under certain democratic rules, meant to ensure that governing parties and leaders govern for the common good of all citizens, not just the ruling party, leader or allied elites and constituencies. The South African democratic Constitution also removed the colonial and apartheid-era executive and parliamentary supremacy by compelling the executive to make decisions and Parliament to pass laws in line with the Constitution rather than what is in the interests of the executive or Parliament (Lamola 2022).
Constitutions prevent governments from forming party-states, personal rule or dictatorship in which ruling parties, individuals and dictators own the state. In such cases, ruling party constitutions and leaders’ personal dictates are more important than country Constitutions (Gumede 2017).
Constitutions are, therefore, the supreme accountability mechanism in a democracy. Constitutions hold governments accountable for public service delivery, governing in the common interests and protecting the rights of all. Undermining a democratic Constitution also undermines accountability. In many countries, whether advanced democracies or developing ones, “people who exercise political power, and claim to represent the will of the people, do not like being checked or balanced” (Gleeson 1999).
Nevertheless, most African countries’ constitutions are often regularly changed at the behest of ruling parties and leaders (Ghai 2010). African ruling parties and leaders change constitutions because they do not want to be held accountable for corruption, incompetence and violence against citizens. Constitutions that are not sacred and are changed at will when they do not suit the ruling parties and leaders, as is the case in almost all African countries, foster a lack of the rule of law, lack of accountability and lack of shared norms of acceptable societal behaviour.
How democratic Constitutions are undermined in Africa
Country constitutions are undermined in three ways across the continent. In countries run by African liberation and independence movements, such as the ANC, Zimbabwe’s Zanu-PF, and Algeria’s FLN, the constitutions of these movements often trumped their country’s constitutions. African liberation and independence movements’ constitutions are manipulated to serve the party leaders and elites, make them untouchable and exonerate them from prosecution for breaking the law (Ghai 2010; Gumede 2017).
In African countries, with large settler communities were at the end of colonialism or white-minority rule, democratic country Constitutions were jointly written by liberation movements and outgoing colonial or white-minority governments; when these liberation movements failed in power, they blamed the country Constitutions for their very own failures, describing constitutions as “colonial”, “Western” or anti-African (Gumede 2017).
This was the case in Zimbabwe when Zanu-PF’s Robert Mugabe, after murdering tens of black Zimbabweans who did not support his party, plundered the state and failed to deliver public services, then blamed the supposedly “colonial” Constitution, which, ironically, Zanu-PF was the co-author of, instead of taking responsibility for the government’s failures (Mandaza 1986; Bond and Manyanya 2002; Gumede 2017).
In May, Namibian President Hage Geingob, told traditional leaders “don’t go to white courts, because our courts are basically former white courts”, in reference to the country’s courts (The Namibian 2022). Geingob claimed traditional leaders must use customary law to resolve disputes, rather than the country’s Constitution, courts and laws (Vatileni 2022). Namibian State House press secretary Alfredo Hengari said Geingob want disputes between traditional leaders “be solved in accordance with the customs and traditions of the communities, as opposed to the modern court system of our republic” (Vatileni 2022).
In other instances, Namibia’s Swapo has often put its party constitution above that of the country’s Constitution – with its leaders demanding that members and supporters refer to the party’s Constitution rather than to the country’s one (Katjavivi 1988; Horn 1989; Van Wyk 1991; Erasmus 2002; Okpaluba 2003; Bösl, Horn and du Pusani 2010). Similarly, in Cape Verde, the African Party for the Independence of Cape Verde (PAICV), also saw the party’s constitution as above the country’s 1980 post-independence Constitution.
In African countries where the military, monarchies, and religious and personal dictators are in charge, the country constitutions also exempt these ruling elites from being held accountable (Ghai 2010; Gumede 2017). Similarly, in the group of African countries which are run by ethnic-based parties and leaders, constitutions are written or changed to serve these ruling ethnic elites (Gumede 2017). Governing parties and leaders changing constitutions at will to suit themselves or exempting themselves from adhering to them is one of the main reasons why development has failed, public services have collapsed, and instability has been the norm in most post-colonial African countries.
African liberation movement governments see country Constitutions as ordinary laws
Many former liberation movements turned governments continually change Constitutions – as if Constitutions are normal laws, to escape accountability.
In Algeria’s successive National Liberation Front (FLN) governments have seen themselves as above the Constitution and have behaved unconstitutionally when it suited them. Algeria’s National Liberation Front (FLN) after independence in 1962 from French colonialism was unenthusiastic about the constitutional rule. Leaders and members of Algeria’s FLN saw the party’s Constitution as above that of Algeria’s post-independence Constitutions (Soustelle 1957; Stone 1997). The FLN party constitution was based on democratic centralization (Chabal 1983). Immediately after independence, a Constitutional Assembly was established under the leadership of Ferhat Abbas to draft a new Constitution.
However, the FLN and its leader Ahmed Ben Bella, sidelined the Abbas-led Constitutional Assembly and enacted a Constitution that declared Algeria a one-party state. The FLN said: “The classic presidential and parliamentary systems cannot guarantee this stability, whereas a system based on the preeminence of the sovereign people and the single party can effectively ensure it” (Constitution of Algeria 1963).
Algeria’s first post-independence constitution was adopted by referendum in 1963. Under Algeria’s first post-independence Constitution the President, then Ben Bella was designated as Head of Government, Chief of State and Supreme Commander of the Armed Forces. The President had the ultimate power to draft and executive policies, without any legislative oversight or any other democratic oversight (Humbaraci 1966; Merle 1967; Nelson 1978, 1986; Chapin Metz 1994).
In 1965, Ben Bella was deposed in a military coup by Houari Boumedienne, who promulgated a new Constitution in 1976, which created a single-party system, with Boumedienne, the President, with total power. When Boumedienne died in 1978, his successor Colonel Chadli Bendjedid, in 1989, following student strikes and riots over corruption, political repression and economic hardships, the year before, introduced a new democratic Constitution, with a multiparty system, reducing the role of the military and partial individual freedoms.
In the 1991 elections, based on the new 1989 Constitution, with the Islamic Salvation Front poised to win, President Benjadid dissolved Parliament, abolished the 1989 Constitution and cancelled the next round of elections and banned the ISF, unleashing a violent civil war.
Following the end of the civil war, the FLN in 1996, reinstated the 1989 Constitution, with a bicameral legislature, with strong executive powers for President, two-term presidential limits and all ISF and all Islamist parties declared illegal (IDEA n.d). The reinstated Constitution went through amendments until 2008 (Constitute 2022). In the 2008 amendments, then-President Abdelaziz Bouteflika removed the limits on two terms to run for a third term in 2009 (Delabroy 2008).
Following the 2011 Arab Spring Uprisings in North Africa, Algerian President Abdelaziz Bouteflika enacted constitutional amendments, which were adopted in 2016, and which among others introduced presidential limits to two terms (Allouche 2020). However, Bouteflika, then ailing and 82-year old, decided to stand for a fifth term in the 2019 presidential elections, going against the new Constitutional provision for two terms only (Britton 2019). After weeks of protests, Bouteflika in March 2019 withdrew from his fifth term presidential run.
Cape Verde was governed since independence in 1975 from Portugal by the African Party for the Independence of Guinea-Bissau and Cape Verde (PAIGC), and following a coup in 1980 in Guinea-Bissau, the two islands and the party split, the Cape Verde wing of the party renamed itself the African Party for the Independence of Cape Verde (PAICV) (Meyns 2002; Baker 2006). Cape Verde adopted a new Constitution in 1980, but the Constitution was revised continuously, in 1990, 1992, 1995 and finally in 2010 (Pereira, Nina and Delgado 2019). The 1980 Constitution called for a one-party state, with the PAICV declared the only legal party (PAICV 2018).
Following the collapse of the Cold War at the end of the 1980s, mass local street protests, like elsewhere in Africa called for democracy, forcing the PAICV to call an emergency national congress in February 1990 to make constitutional changes, introduce democracy and multiparty politics (Meyns 2002; Baker 2006; Pereira, Nina and Delgado 2019).
Civil society organizations formed an umbrella political organization, the Movement for Democracy (MPD) in April 1990, calling for multiparty elections, to which the PAICV agreed. The PAICV ended the one-party state in September 1990 and called elections for January 1991. The MPD won the 1991 elections. The new elected MPD government 1992 enacted a democratic Constitution which promoted multipartyism, a strong Parliament and presidential powers that can only be exercised with Parliament (Canas and Fonseca 2007; Costa 2009; Beuman 2016).
Presidential powers were significantly reduced in the 1992 constitutional revisions. The head of state could not dismiss the Prime Minister and dissolve Parliament. The 1992 Constitution established the independence of the judiciary. Up to then, the judiciary deferred to the executive. The MPD governing party amended the Constitution again in 1995 – this time to increase the powers of the President.
In 1999 the country introduced new constitutional amendments, to establish a Constitutional Court and a National Ombudsman. The new Cape Verde Constitution was passed in 2010. The new 2010 Constitution can only be amended by a two-thirds parliamentary majority, to prevent further manipulation the Constitution has happened and in many African countries, governments by liberation and independence movements turned into governments (AfDB 2012). The President is elected directly by citizens at home and abroad. The 20210 Constitution make it one of the least presidential in Africa. Traditions and customs are only legal if they adhere to the Constitution and respect human dignity.
Wrongly blaming the Constitution for public service delivery
Many South Africans poorly understand that the Constitution, the country’s supreme law, is not a structure responsible for delivering public services but outlines the system of government, how power is responsibly exercised, the rules of behaviour, and citizens’ rights. The government elected to power is responsible for public service delivery. Albie Sachs (2017), former Constitutional Court judge and one of the writers of the Constitution, said: “The Constitution is not self-executing. It does not in itself provide equality, build houses, deliver education and health services, or offer protection against violence. It does do to establish a social, moral and institutional framework within which these issues should be tackled”.
Worryingly, South Africa’s model democratic Constitution is increasingly wrongly made the scapegoat for government failures to create jobs, slash poverty and provide quality public services. Former Rural Development and Land Reform Minister Gugile Nkwinti (2011) said: “the constitution has to help the community advance. If advancement gets stalled, then the Constitution has to be changed”. Former Justice Minister Jeff Radebe said (2012) about the Constitution, there “are no holy cows”. “There are scare tactics the media uses that suggest we are not allowed to talk about constitutions, and it seems heretical for us to say we might change the constitution,” said Radebe.
More recently, Lindiwe Sisulu, the Tourism Minister, as part of her campaign to contest the presidency of the ANC at the party’s upcoming December 2022 national elective conference, dismissed the Constitution as “a neo-liberal constitution with foreign inspiration, but who are the interpreters? Furthermore, where is the African value system of this Constitution and the rule of law? If the law does not work for Africans in Africa, then what is the use of the rule of law?” (Sisulu 2022). Sisulu blamed the “sea of African poverty” on the Constitution, questioning the “agency” of the country’s overarching document, asking: “What has this beautiful Constitution done for the victims [of colonialism] except as a palliative (Panadol)?”. Sisulu called judges upholding the Constitution as “house negroes” and “mentally colonised” who are “settled with the view and mindset of those who have dispossessed their ancestors”.
The irony is that the Constitution was not only written by South Africans, including mostly black ones, but also by the ANC. The Constitution has many of the principles cobbled together in the ANC’s 1988 Constitutional Guidelines for a Democratic South Africa. The Constitution also encapsulates the values of the 1955 Freedom Charter (Congress Alliance 1955; ANC 1988).
The key public delivery failures, often blamed on the Constitution – have nothing to do with the Constitution. However, it is a direct result of the failure of government implementation because of a combination of the government appointing incompetent and corrupt cadres to public positions and service providers, allowing corruption to proliferate and adopting non-sensical policies and ideologies. Many ordinary citizens poorly understood that government failure has very little to do with the Constitution but is directly the result of the government’s failure. Many ANC leaders have used the Constitution to scapegoat for their governing failures.
Populists, the dishonest and the well-meaning but ignorant, over the years have persistently but wrongly blamed the Constitution for allegedly being against transformation, understood as providing public services, development, opportunities and democratic participation beyond voting, to previously disadvantaged communities. Even if the aspects of the Constitution that are supposedly blocking “transformation” are to be changed, it is unlikely that the government’s delivery of public services will improve. It is more likely that government service delivery will further deteriorate in most cases.
In fact, if not for the protection of the Constitution right now, the effects of poor governance would have been even worse – public services would have totally collapsed, rather than just deteriorated, plunging South Africa into a fully-fledged failed state much earlier. The truth is that the attacks on South Africa’s democratic constitutions are leaders wanting to shield themselves from democratic scrutiny and accountability so that they can continue to enrich themselves at the expense of overwhelmingly poor Africans, failing to take responsibility for their corruption, incompetence and mismanagement which have left many in dire poverty and trying to protect themselves from prosecution from wrongdoing.
In many cases since 1994, it was only after poor communities and civil groups used the Constitution and appealed to the Constitutional Court that the government eventually delivered on its constitutional duty to provide low-cost housing and HIV/Aids drugs for the poor. Alternatively, in other cases, ordinary citizens, civil society and communities had to use the obligations under the Constitution to force Parliament, provincial legislatures and municipalities to hold elected and public officials accountable, as in the case when former President Jacob Zuma used taxpayers to refurbish his personal compound, Nkandla to the tune of R280m. Fixing the wrongs of the past does not need the Constitution to be changed. So-called “anti-transformation” clauses in the Constitution cannot be blamed for government failures.
The problem with all these issues is not the Constitution, but because either an incompetent public service (mainly because the best people are not appointed to jobs) and wastage and corruption go unpunished because the culprits are powerful party leaders.
The Constitution is not “anti-transformation.”
Those in the governing ANC, parties that are breakaways from the ANC, such as the Economic Freedom Fighters, and populist and traditionalist parties of the left and right who wrongly say the Constitution undermines “transformation”, appear to have around five key issues with it.
The first is the property clause in the Constitution, Section 25, which provides “market value” to be paid for expropriated land for a public purpose, such as land reform. Even former land affairs minister Gugile Nkwinti (2012), a strident supporter of changing the Constitution to allow for land expropriation without compensation, had readily conceded that the willing-buyer, the willing-seller principle may be a problem but was not the “worst impediment” to land reform.
The Constitution already allows for land expropriation – so it is not the Constitution that is the obstacle, public sector incompetence, because of “deployed” ANC cadres without the skills being appointed to manage land reform, and corruption – redistributing land to political connected ANC cadres and public servants are the problem. Land reform so far has been astonishingly incompetent. Learning from successful land reform elsewhere is very clear: land reform must be pragmatic, honest and focused on empowering those already in farming. Furthermore, based on promoting export-focused industrialisation and food security – not based on ideology, populism and revenge. Rather than pragmatism, promoting export-focused industrialisation and food security.
Inflated land prices are a problem, but this does not require a change of the Constitution. The government can easily introduce a ceiling based on fair commercial values where appropriate – without changing the Constitution. Importantly, even if the government changes the Constitution to allow for expropriation without payment, the current implementation problems will not only remain but there will be free-for-fall corruption of land to cadres, which will collapse food security, and property rights across the economy and lead to a massive capital, skills and investment flight.
Former Chief Justice Arthur Chaskalson rightly argued that the Constitution did not prescribe that compensation for land reform should be “what a “willing buyer” would pay “a willing seller”. However, the Constitution [Section 25(3)] requires the compensation, and “the time and manner of payment” to reflect “an equitable balance between the public interest and the interest of those affected” and having to satisfy several other requirements. Paying market value is one of those requirements. However, there are also others, including the history of the acquisition and use of the property, the extent of state investment and subsidy in it, and the purpose of the expropriation. In my view, these provisions and the relatively unrestricted fiscal power vested in the national government under Chapter 13 of the Constitution would permit the adoption of a reasonable land redistribution policy”.
The Constitution [Section 25(5)] and subsection 4 of the property clause of the Bill of Rights provide for expropriation of property in the public interest, which includes “the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources”. The 2017 High-Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, chaired by former President Kgalema Motlanthe, established to investigate the impact of laws since 1994, found that land reform and restitution had been a failure, but not because of the Constitution. It found the failure of land reform was due to a combination of lack of implementation, corruption, mismanagement and inadequate budget allocation. The 2017 High-Level Panel concluded that the “Constitution provides for positive land rights in Sections 25(5), (6), (7) and (9). These are the rights to equitable access (redistribution), tenure security and restitution. These rights are not being adequately promoted, enforced and protected. Instead, they appear to be under attack from policies and practices that redirect the benefits of land reform to potential political alliances with specific elites.”
Mike Mlengana, the former Director-General of the Department of Agriculture, Land Reform and Rural Development, resigned abruptly in July 2020, saying among the reasons for him leaving include widespread inefficiencies at all levels within the department, the department structures and human capital not being geared for effective implementation of plans to develop and support South Africa’s agriculture sector and an “absolute lack of delivery knowledge and work ethic” at all levels and the lack of will to tackle corruption and holding officials accountable (Phillips 2020).
Another constitutional issue is apparently Section 217 (1) of the Constitution, which requires all organs of state to “have a procurement system which is fair, equitable, transparent, competitive and cost-effective”. Former government spokesperson Jimmy Manyi (2010) said disadvantaged individuals regularly lose their court bids when trying to obtain tenders because of this provision of the Constitution. “It appears the Constitution does not support the transformation agenda in this country,” Manyi said when he was president of the Black Management Forum. In 2016, then government Chief Procurement Officer Kenneth Brown said as much as 40% of the government’s annual R600bn budget for goods and services are being stolen by inflated prices from suppliers, fraud and corruption. The real problem is that some individuals want government tenders to be given to them, their associates or family members solely based on their political connectedness or blackness, even though they may not have the capacity to deliver. Corruption in the government procurement system has become endemic.
Some ANC leaders also appear to have a problem with the sections of the Bill of Rights, chapter 2, in the Constitution which guarantee human rights, enshrines freedom of expression and guarantees everyone the right to “enjoy their culture”, provided it does not undermine other constitutional rights, such as gender equality. Some ANC leaders wrongly believe that the human rights provisions in the Constitution make it difficult for the police to prosecute criminals. Former Defence Minister, the late Joe Modise (1999), said that criminals had been given “too many rights” when drafting the Constitution.
The late lawyer George Bizos told the Farlam Commission of Inquiry investigating the massacre at Lonmin’s Marikana Mine that then National Police Commissioner Riah Phiyega had alleged during a radio interview with radio presenter Redi Thlabi that criminals in South Africa were “absolutely brazen because we have a beautiful constitution that allows rights” (Sosibo 2013). Nevertheless, Bizos rightly rejected blaming the Constitution for a rise in criminality. Bizos cited former police commissioners Jackie Selebi and Bheki Cele, who had said that criminality among high-ranking police officers and police brutality could be among the reasons for the rise in hard-core criminality. “Couldn’t the criminality be a result of the inefficiency of the police force, as it was renamed? Couldn’t it be that they are brazen [criminals] because of the number of complaints received about police torture and ill-treatment of arrested persons?” (Sosibo 2013).
Cultural practices that undermine constitutional values, individual dignity or safety, degrade women or allow traditional leaders to do as they please with no accountability cannot and should not be defended at all. The irony is that the Constitution used the African principle of Ubuntu, a democratic, caring and dignity-enhancing aspect of African culture, rather than one that makes women unequal, gives leaders unequal power or allows violence against others. Justice Minister Ronald Lamola (2022), in response to the recent attacks by Tourism Minister Lindiwe Sisulu on the Constitution, in which she alleged the Constitution was unAfrican, rightly asked: “What could be more African than the spirit of Ubuntu? What then is the basis of criticising the same court that has used Ubuntu as a beacon for all its future jurisprudence?”
The right to freedom of expression enshrined in the Constitution has also been a bugbear for many ANC leaders. Some ANC leaders do not want their shenanigans to be publicly exposed – they, therefore, are opposed to freedom of expression, which allows for the exposure of wrongdoing. Jimmy Manyi (2010), when he was president of the Black Management Forum, said he and many others had a problem with freedom of expression, which was enshrined in the Constitution, saying the media had taken the freedom of expression “too far” because of its criticisms of the corruption under then-President Jacob Zuma. “Why is it that the media can have a field day railroading the president’s office without impunity?”, Manyi asked at the time. Yet, the ability to criticise the government for poor delivery helps hold the government to account. Governing honestly and effectively is the best antidote to criticism.
For another, many ANC leaders believe they are above the Constitution by virtue of being “leaders”. Many calls for changes to the Constitution are for self-enrichment or to prevent leaders from being held accountable for wrongdoing. It appears increasingly that some individual ANC leaders reckon the Constitution must be changed to give them immunity from their own personal wrong actions. Many ANC members appear to believe that because the ANC was the governing party that writes the country’s laws, they, as “leaders”, are above the Constitution, laws and democratic moral values. Former President Jacob Zuma defied the Constitutional Court, which enforces the values of the Constitution. The Constitutional Court ordered Zuma to appear before the Zondo Commission into State Capture; however, he refused, rejecting the Constitutional Court and, by implication, the Constitution as if he was above the Constitution, democratic institutions and the law. Zuma was rightly jailed for contempt of court for defying the Constitutional Court.
Justice Minister Ronald Lamola (2022) rightly said that the “most of the gains we have made as a nation since 1994 has been because of the Constitution”. The enforcement of the Constitution by the judiciary has “brought about a much more equal society, where human dignity places a central role” (Lamola 2022). The Constitutional Court in 2004 found that section 23 of the Black Administration Act of 1927 violated the rights to equality and dignity under the Constitution (Constitutional Court 2004). The Black Administration Act entrenched customary law, violating the rights of women and children and making them unequal to men. The Black Administration Act, which allowed only men to inherit assets, and excluded women and illegitimate children from claiming inheritance, was essentially a parallel law to the Constitution, which excluded black African women and illegitimate children from their constitutional rights to equality.
The Constitutional Court concluded in the Soobramoney case (1997) that the state is obligated to deny a person who does not have the income a remedial treatment necessary to forestall harm in the case of a sudden catastrophe or emergency. In the Grootboom case (2001), the Constitutional Court judged that the state has an obligation to provide children and their parents who live in extreme conditions of homelessness with shelter. It essentially determined that the state has an obligation under the Constitution to implement socio-economic rights within available resources.
The Treatment Action Campaign successfully in 2002 petitioned the Constitutional Court to make the antiretroviral drug nevirapine widely available at public health facilities to pregnant women to prevent mother-to-child transmission of HIV/Aids and to oblige the government to implement and set out clear time frames for a national programme to prevent mother to child transmission of HIV, including voluntary counselling and testing, antiretroviral therapy, and the option of using formula milk for feeding. At the time, the use of Nevirapine was limited to only a small number of pilot sites, two per province, meaning that only about 10% of all births in the public sector benefited. The Constitutional Court (2002) said that all South Africans have the equal right to access health care services – and that limiting Nevirapine to pilot sites only violated the state’s obligation to provide health services equitably to all. The Constitutional Court also pronounced that the state has an obligation to provide healthcare for children when “parental or family care is lacking”.
Competing governance systems to that of the Constitution
South Africa has competing governance systems to the Constitution to which citizens swear allegiances to their private and public life rather than to the Constitution. The ANC is a liberation that has its own Constitution, values, and culture that many leaders, members, and supporters see as above the country’s Constitution. Many aspects of the ANC’s Constitution contradict the Constitution. When he was president, former South African President Jacob Zuma warned ANC leaders and members that the ANC’s law was above that of the Constitution.
For example, some time ago, Former President Jacob Zuma warned that ANC MPs should serve the ANC first before the Constitution (Makinana, Stone and Nhlabathi 2016). Zuma said: “ANC leaders in government should not regard South Africa’s Constitution as ‘more important than the ANC because this would land them in trouble”. Leader of the Congress of the People, Patrick Lekota, responding to Zuma’s anti-Constitution statement said that elevating the ANC as above the country’s Constitution “is an absolute disaster” for democracy and “reduce to nil whatever gains of democracy we have cherished and continue to hope will become” (Van Onselen 2008).
The irony is that in South Africa, the large majority of South Africans in the former Bantustans are not under the jurisdiction of the democratic Constitution but under the jurisdiction of customary law, the so-called African traditional “law”, which is being called for by populists, representing, in fact, a parallel state. Although customary law is recognised in democratic South Africa, it is meant to be subject to the Constitution, democratic institutions and laws; however, it has been operating above the Constitution.
South Africa’s former homelands, where customary law is the norm, have been entrenched as it was during the apartheid era, with unelected kings, chiefs and traditional leaders and their councils controlling communal land, negotiating mineral rights and prospective business deals on behalf of the community, without any consultation with the community required. Any community member objecting is likely to be banned from using the communal land, excluded from any other communal income and violently punished by traditional kings, chiefs and leaders, who threaten their “subjects” as if they own them, control “communal” land and set their own laws under the pretence of African “tradition”, “laws” and “culture”.
The governance system of traditional chiefs, leaders and structures, and its guiding ideology of patriarchy, directly challenges and competes with South Africa’s democratic Constitution, laws and values. Pockets of many rural areas have turned into parallel states, where traditional kings, chiefs, or leaders have turned these areas into their quasi-states, parallel to South Africa’s constitutional state (Mnisi Weeks 2015). In particular, South Africa’s former homelands have been entrenched as it was during the apartheid era, with unelected kings, chiefs and traditional leaders and their councils ruling without democracy, controlling communal land and mining rights, with citizens having little rights and where gender equality is a foreign concept. The system of African traditional chiefs, leaders and structures should be abolished or, if retained, reformed to be in line with constitutional democratic norms to ensure social, gender and age equality and promote individuals’ freedom of choice.
Some ANC leaders take cover under “traditional law” when they want to escape accountability for wrongdoing under the Constitution. There have been many calls from some ANC leaders, specifically former ANC and South African President Jacob Zuma, for supposedly “African” law to be arbitrary of their actions and not South Africa’s Democratic Constitution. A case in point was when former President Zuma said that he needed to be judged by African’ law’ when he built a R2480m private home with taxpayers while his supporters lived and died in grinding poverty; more than R1.5trillion have been siphoned off through corruption during his government and when he appointed incompetence cronies to democratic institutions, the public service and SOEs, leading to state collapse, factory closures and mass unemployment.
In many cases, organised criminal groups and gangs control townships where they implement their own gang governance systems. These gang governance systems are above the Constitution. The Constitutional rules, values, and laws do not apply in these areas. Sadly, every township citizen under the “jurisdiction” of these gang governance systems has no access to the rights in the Constitution.
The South African Constitution was not foisted on the country or written by foreigners – whether colonisers, non-Africans or Western “imperialists”. It was written by leading indigenous African legal minds. Most of them are supporters or members of the now governing ANC – whose leaders, members and supporters now, to escape being held accountable for corruption, incompetence and non-delivery, blame the Constitution as a scapegoat. Ordinary citizens, civil society and the media must use their constitutional rights better to hold public and elected officials accountable and ensure that democratic institutions give better effect to the Constitution. All competing governance systems to the Constitution must either be abolished, made illegal or transformed to align with the Constitution. Customary law should be aligned with the Constitution. The parts of customary, sharia law or any other religious or traditional law that undermines the Constitution should be abolished.
The ANC and all other political parties’ constitutions must be aligned with the Constitution. Political parties should not receive public funding unless their constitutions and values align with the Constitution. The Constitution is a social-democratic document that sets political, human rights, socio-economic rights, redistribution imperatives and nation-building goals for the country. The South African Constitution is one of the greatest indigenous African legal documents ever written – admired by many cultures, societies, and countries, including Western ones outside the continent.
Honest, competent and accountable government and leaders – and citizens, civil society organisations and the media holding elected and public officials accountable will considerably improve public service delivery, development and economic growth. South Africa needs a mass campaign by civil society organisations, businesses, the media and political organisations to increase the knowledge of the role of the Constitution – to prevent the campaign by the corrupt, the incompetent and populists to blame the Constitution for their own incompetence in government, to cover-up their corruption and to shield them from being held accountable. South Africa’s democratic Constitution, although under heavy fire for a long time now from the corrupt populists and opportunists, has considerably slowed down the country’s slide into a failed state.
What is clear is that there is a profound lack of knowledge among South Africans about the Constitution. Government, opposition groups, civil society organisations and the media must raise awareness about the Constitution. Organised businesses should introduce educational programmes about the Constitution in company induction and learning programmes. Basic education on the Constitution should also be introduced to all public and elected officials. Finally, the Constitution should also be introduced at nursery, primary, high school, and tertiary education levels. Greater about the Constitution will boost ownership among all South Africans of the country’s foundation document.
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