IN FULL | Only constitutionalism can resolve inequality: Tembeka Ngcukaitobi

South Africa is in a crisis of inequality.

"We have a constitution which promotes equality by a society which has produced inequality. We have a pro-poor constitution producing anti-poor outcomes," said lawyer, legal scholar and author Tembeka Ngcukaitobi SC.

He was presenting the Mapungubwe Annual Lecture at the University of Johannesburg titled "Critiques of Constitutionalism 30 Years On".

He said since the advent of constitutional democracy, economist Prof Sampie Terblanche remarked that one of the most remarkable developments in the first years of democracy had been the enrichment of the top 20% of black households and the simultaneous impoverishment of the bottom 30%.

"The explanation for deterioration in the living standards of the black underclass presents certain complexities.

"It can be explained by apartheid racism or its endurance, governmental and institutional collapse, a stagnant economy unable to produce sustainable employment opportunities and the indifference of the emerging black elite to the plight of the poor," Ngcukaitobi said.

He said these factors combined appeared to have entrenched poverty of the black underclass.

On the issue of inequality, Ngcukaitobi said he thought the problem lay in part in a restrictive interpretation of the constitution as an instrument to regulate public affairs and social relations but never as an instrument to regulate economic power.

"It is as if the economy operates outside the framework of the constitution." 

Ngcukaitobi said the last major policy intervention by the ANC government in the sphere of economic equality was the black economic empowerment (BEE) legislation in 2003.

"Let us face it: BEE has not addressed inequality. In fact, despite the claim in its preamble that it is intended to address economic inequality, the structure of the act cannot solve the crisis of inequality."

Ngcukaitobi said there were many things that could be done to resolve the crisis of economic injustice. 

"The constitution is a manifesto for economic justice. Therefore the crisis of inequality is a crisis of constitutionalism. But it is only constitutionalism that can resolve inequality, not cheap, empty populist slogans."

Ngcukaitobi said constitutionalism also faced another malcontent: judicial supremacy and a representative parliament.

He said on February 14 1995, South Africa's first democratically elected president Nelson  Mandela inaugurated the first Constitutional Court. Mandela said the survival of democracy depends on the Constitutional Court.

"He was not conceding democratic power to an unelected branch of government. Instead he was giving due recognition to the role of the judicial branch in holding the two other branches to the spirit and letter of constitutionalism.

"Yet in recent times, Mandela's wish for the role of judiciary in the new South Africa has been called into question."

Ngcukaitobi said more forcefully than ever before, the call for a return to parliamentary supremacy was being made.

"We have been here before. The very idea that parliament is supreme is an imperial idea. It was introduced when the British were the imperialist power in the Cape and Natal (in the 1800s). Nationalists embraced it notoriously in the 1950s."

He was referring to laws the National Party enacted to exclude coloured voters from parliament.

"This is what parliamentary sovereignty looks like for those who have not seen it. Of course we seem to learn nothing from history. We are committed to repeating the errors of our ancestors."

He said for constitutionalism to survive, the constitution itself must not only be a popular document but should also be a living one.

"But it is unable to be because of the widening gap between the ideal world which it describes and the expectations it promises on the one hand and the lived reality of many people. At first there was optimism about the ability of the constitution to deliver both on its potential and its promise."

He said optimism was replaced by disappointment and despair at the level of corruption eating away the fabric of the constitutional system and the inability of the legal order to protect itself and the vulnerable.

The initial disappointment and despair had been replaced by cynicism and the idea that it was everyone for themselves, he said.

"These days many people shrug their shoulders or roll their eyes when they hear another story of corruption."

Ngcukaitobi said constitutionalism has had its trials and tribulations. At first it tried to live to its promise, but in the long run it had not been able to deliver on its economic promise.

"It has been abused by some. I am a constitutionalist nevertheless, despite its imperfections, its vulnerabilities, its apparent impotence in the face of raw power. I am yet to find a better system."

Read Ngcukaitobi's full speech here: 

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