Persistent attacks on the constitution by populists, the incompetent and the corrupt have undermined public legitimacy of the supreme law, unleashing a general breakdown thereof. This allows competing, despotic governance regimes such as customary, strongman and gangster “law” to gain traction as alternatives.
Constitutions trump ordinary laws and cannot and should not be changed willy-nilly. Attacks on the constitution have undermined it to such an extent that they have created a perception that it is like any ordinary law, one that can be changed at the behest of governing parties and leaders. This in a country where large numbers of citizens are illiterate, ill-informed and lack knowledge of the workings of a political system.
A constitution ensures governing parties manage a state under certain democratic rules. This is to ensure leaders govern for the good of all citizens, not just the ruling party or allied elites and constituencies.
Constitutions prevent governments from forming party states, personal rule or dictatorships in which ruling parties or individuals own the state. In such cases ruling-party constitutions and leaders’ personal dictates are more important than a country’s constitution.
Attacks on the South African constitution have undermined its ability to hold government responsible.
Undermining a democratic constitution also undermines accountability because a constitution holds a government responsible for service delivery and governing to protect the interests and rights of all. The attacks on the South African constitution have undermined its ability to hold government accountable.
Recently, ANC representatives have promulgated laws that are poorly thought out, rigidly ideological, illogical and against the constitution. They are often rejected in court, leading party leaders to blame the constitution.
Many ANC leaders believe they are above SA’s supreme law or that the party’s constitution is more important. Or they simply do not grasp that the constitution is the highest law and that all other policies, laws and behaviours must align with it.
A constitution expresses the common values of a country and the attacks on SA’s have meant the country has been unable to forge acceptable common values that bind its people. A constitution also shapes a common identity for a country, especially one as diverse as SA, with its contested past, racial, ethnic and political polarisation, historic injustices, inequalities and resentments. The attacks on the constitution have undermined efforts to forge a common South African identity.
Many South Africans are unaware that the constitution is not responsible for delivering services, but outlines the system of government, how power is responsibly exercised, the rules of behaviour and the rights of citizens. The government is responsible for service delivery.
Many ANC leaders believe they are above the constitution or that the party’s constitution is more important.
At the same time, the devastating consequences on service delivery of a government that appoints incompetent and corrupt cadres to the public service are underestimated by many.
Some of the key service delivery failures which are often blamed on the constitution have nothing to do with it. They are a direct result of government failure.
Even if the aspects of the constitution that are supposedly blocking “transformation” or service delivery are changed, it is unlikely things will improve. In fact, they will totally collapse, plunging SA into a fully fledged failed state.
SA’s constitution is the greatest African-originated supreme law of the postcolonial era. It is the genuine African solution for African problems.
As the ANC liberation era, in which the party dominates because of its struggle history, draws to an end — with the inevitable loss of power on the immediate horizon — the constitution may rank as the greatest document that has originated from the party.
It is ironic that post-Nelson Mandela ANC leaders, who have been the most responsible for the decline of the party, appear to be the most strident critics of the constitution. Though it was drawn up by all political parties, civil society and local and global experts, ANC negotiators were its key drafters.
This speaks volumes about their extraordinary ignorance of their party’s history and the self-interest and corruption of many of this generation of ANC leaders. SA needs a mass campaign by civil society organisations, businesses, the media and political organisations to increase knowledge of the constitution’s role — to halt a campaign that blames it for government incompetence, while aiming to cover up corruption and escape accountability.
William Gumede is associate professor, School of Governance, University of the Witwatersrand, and author of ‘Restless Nation: Making Sense of Troubled Times’ (Tafelberg).
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