EUSEBIUS MCKAISER | Beware thinking of the constitution solely as a legal text

The relationship between our country’s constitution and our democracy gets insufficient attention in public debate about our constitutional democracy. That might seem like an odd claim to make at first glance, given the words “constitutional democracy” contain references to both. However, the ways in which we talk about the constitution are often narrow and legalistic, not allowing for broader, critical inquiry into the politics of law and how this foundational legal text relates to our social lives.

This has been on my mind for a long while, but especially recently, when I had a close look at the programme for this week’s national conference on the constitution, organised by the department of justice and constitutional development. The main themes focus slavishly on it as a text, with only a handful of sessions relating that text (indirectly at that) to democratic theory. This is unfortunate, not least because it gives lawyers the impression that they alone are entitled to engage questions about the constitution.

It is not only a legal text. It is also a political text that needs to be situated politically as such and examined in relation to how it travels beyond courtrooms and law schools. There is often a naive presumption from some lawyers that non-legal questions about the constitution do not arise or that those that do are subordinate to constitutional hermeneutics. Many examples show why this narrow, legalistic view of the document’s place in our lives cannot be sustained.

When President Cyril Ramaphosa failed to convince the constitutional court that he must be granted direct access for it to determine whether the recommendations of the section 89 panel should be set aside, this answered and raised many legal questions. Lawyers will correctly remind laypersons that the merits of the case had not been commented on by the court. It was a procedural setback for the president rather than a substantive vindication of the panel’s work. Before this outcome, lawyers also debated energetically on whether the panel had overreached in its putative findings and recommendations when measured against its legally proscribed powers. These are squarely legal questions and lawyers would be right to caution those who are not lawyers to jump hastily into technical legal waters.

In debating or reflecting on the constitution, it is therefore important to ask: 'What is its role in our political lives?'

But the real reason Ramaphosa lodged papers with the Constitutional Court had nothing to do with feeling legally aggrieved by the findings of the panel. It was a purely political decision, weaponising legal processes to avoid tough questions at the ANC’s elective conference about the Phala Phala matter. As I said to a friend of mine who is one of the most talented legal minds in the country, the public would be deeply mistaken to imagine the legal drama to be about the law as such. Lawfare in South Africa is now a big part of political contestation. The use of the constitution to try to stave off tough accountability questions on Phala Phala cried out for a political reading of the legal moves made. The constitutional text, in this case, was used as a pawn to prevent the full democratic role of parliament from being activated. Some lawfare in South Africa may well harm our constitutional democracy rather than enhance it. This is why you need to periodically step back from legal adjudication and think, in terms of political sociology, what to truly make of battles taking place in our courts.

In debating or reflecting on the constitution, it is therefore important to ask: “What is its role in our political lives?” We love the constitution so much — there is a lot to be said in its favour — that we seldom frame questions about its role as an important yet minor character in a larger story about contestations for political power.

It has been a proverbial blessing and curse. A blessing insofar as it is unprecedented in the history of our country to have a basic legal text in place that is founded on the values of dignity, equality and freedom. Flowing from these are a range of chapters that speak to and offer a vision of the type of just society we wish to be and become, leaving in its wake a painful history of colonialism and apartheid. More ambitiously still, we opted into a Bill of Rights that contains legally enforceable socioeconomic rights, not just civil and political ones. This has made it a legal duty for the state to prove it is progressively realising access to important social goods such as housing, education and healthcare, with a burden to demonstrate how it is using resources available to it when confronted by citizens for being tardy in ensuring we animate the rights therein.

In that sense, the constitution enhances democracy by being a powerful tool for political accountability. This is why many civil society organisations, among them Equal Education, Section 27 (previously The Aids Law Project) and The Helen Suzman Foundation, devote a sizeable portion of their resources to using the constitution to get the state to uphold the Bill of Rights. When we wax positively about our constitution, it is typically these design features of our constitutional democracy that we think of.

However, democracy is about much more than the constitution and the Bill of Rights contained in it. It is this that we miss when we talk about the constitution mainly in legal terms. We also sometimes set up a false expectation that our wider democratic challenges can be subsumed under legal ones. That is not so. Sometimes the state ignores legal agreements it has reached with civil society. A good example of this is the proliferation of pit latrines in our schools when the department of basic education agreed to eliminate these by now. The same is true of other structural defects in hundreds of schools across the country. The battle to get the state to provide quality basic education to all citizens, including the elimination of pit latrines and building schools that conform to the norms and standards agreed to with civil society, is a wholly political problem. The state’s woeful disregard for the needs of citizens and working out what can be done to engage such a state are questions that require a combination of political science, legal theory and social activism.

The implication of this analysis is that while we should celebrate the normative ideals and historically impressive nature of the constitution we signed into law in the late 1990s, doing so is just the beginning of building a society that works. What the passage of postapartheid time has taught us thus far is that the democratic project is bigger and more ambitious than having in place an impressive constitutional text. The constitution, when used strategically, can and does enhance our democratic lives. But our democracy will only truly deliver better lives for everyone if we each accept that building a powerful democratic society requires us to supplement constitutional vision with hard work as democratic activists.