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Sun Nov 23 18:54:11 CAT 2014

We turn against the constitution at our own peril

Mondli Makhanya | 29 January, 2012 00:05
Mondli Makhanya
Image by: Sunday Times

Questioning the separation of powers leads SA down a slippery slope

The following words appeared in a recent edition of ANC Today, the governing party's online newsletter. They were written by one Khaye Nkwanyana, an SA Communist Party leader and ANC member.

"It can only be those who are the most naïve within our ranks who can lay claim to the rise of, mainly but not exclusively, white-by-definition lobby groups as a mere innocuous development that poses no political threat to the revolution."

In his piece, Nkwanyana attacks civil society groups that have had the nerve to take government to court to contest decisions. The sole purpose of these groups, he says, is to "unleash societal confusion against government and the ANC", to "besiege government to indecision and indecisiveness" and "to hold the government to ransom".

He also pushes the majoritarian argument sweeping through senior ANC ranks, an argument which seeks to undermine the separation of powers that is enshrined in the constitution.

Nkwanyana's piece is a fun read, though. It is adorned with pearls such as "trapped into a whirlpool of ignominy", "degenerated to atrophy", "a leadership that oscillates like a pendulum ball in hither and thither", "the foci of what they inveigh against the current government in an obtuse impish insolence" and "overflowing details and exigencies that are associated with being an incumbent" . Very nice!

Nkwanyana and a growing number of senior ANC figures believe that the use of democratic space created by the constitution is tantamount to treason.

"To the extent that the ANC rules because of popular mandate; and to the extent that people confer their collective powers to the ANC to run government, and take executive decisions including to run state institutions, to that extent, ANC government should be allowed to do so with no interference," he says.

Note the irritation with the constitutional order and the assertion of simplistic majoritarianism.

The likes of President Jacob Zuma, secretary-general Gwede Mantashe and national executive committee member Ngoako Ramatlhodi have led the charge in questioning the validity of both the separation of the judiciary's constitutionally conferred powers and its exercise of them.

Ramatlhodi has even suggested that the constitution be revisited because it shackles the government.

This line of thinking is now filtering down to lower tiers of the ANC. Branch members are beginning to mouth anti-judiciary and anti-constitution rhetoric.

The essence of this logic is that aspects of the constitution were forced down the throats of the ANC at the pre-democracy negotiations.

Now the notion that any aspect of the constitution was forced down the throats of the ANC is a downright fallacy.

Our constitution is the product of a post-1994 process that was conducted by a democratically elected constitutional assembly that had a 65% ANC majority.

The ANC was among the prime champions of the liberal and progressive thrust of the 1996 constitution.

The other fallacy is that the constitution inhibits the government from carrying out its duties and is an obstacle to transformation. This is total claptrap.

In a speech to the SA History Online conference last year, the ANC thinker and executive director of the Mapungubwe Institute for Strategic Reflection, Joel Netshitenzhe, dealt with some of these fallacies.

He said the principles of a rights-based and "law-governed" society and the separation of powers were ANC positions even before the interim constitution was adopted in 1993.

He pointed out that these were contained in the 1992 "Ready to Govern" document, in which the party laid out its vision for a democratic SA.

"The principle in our constitution that 'there shall be a separation of powers between the legislature, executive and judiciary with appropriate checks and balances to ensure accountability, responsiveness and openness' and that no branch would wield more power than other branches is a matter of conviction on the part of the ANC and not the convenience of political compromise," said Netshitenzhe.

Rather than stifle progressive change, argued Netshitenzhe, the 1996 constitution "in fact provided the space for policies and programmes to effect ... transformation".

That is the essence of our constitution. Our supreme law provides an architecture, designed largely by the ANC, for the protection and exercise of rights by all citizens and institutions of state.

Sometimes these rights will be exercised by those of whom we are not particularly fond. That is the nature of a constitutional order. It empowers the state to govern for the benefit of citizens but constrains it from abusing that power.

The constitution is not the enemy of the people and painting it as such is dicing with our future as a law-governed society.

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