SA has world's best constitution? Pity people can't eat it...

12 March 2017 - 02:00 By Barney Mthombothi

As the parties inched towards consummating a marriage that would avoid a civil war, and point the country towards a peaceful and prosperous future during the negotiations, the smart alecs among them hit on what seemed like a bright idea.

Apart from the introduction of a full-blown democracy in which every adult of every colour would have the vote and be equal before the law, institutions were created to guarantee the protection of those rights and ensure those elected did not exceed or abuse their powers.

Thus was born what we now grandly refer to as "Chapter9" institutions. The creation of these bodies, we thought, was a stroke of genius. We had found a watertight mechanism to control our destiny, to be the captain of our own fate.

We were kidding ourselves. The politicians knew better.


As gloom and despair descend on us, we are bound to ask: what has become of these crutches, these bulwarks, of our democracy?

Of what use are they to us?

South Africans tend to have an inflated opinion of themselves. I guess one can say the same of every country. Put it down to self-love or patriotism. Faults or flaws often go unseen; successes are talked up ad nauseam.

See the way we often talk about how we miraculously avoided a civil war. And we never forget to remind all and sundry that we've crafted the finest constitution in the world. Boasting about a Rolls-Royce constitution amid the slums, the hunger, corruption, lawlessness and rampant crime.

People can't eat constitutions.

And — as we've discovered to our everlasting shame and embarrassment — our president doesn't give a toss about our beloved constitution, anyway. Each day that he stays in office is a blight on that sacred document.

Rather than showing themselves to be the vaunted angels of our democracy, these Chapter9 institutions have not only been quite worthless — they have also proven an unnecessary drain on the fiscus.

The public protector has done a stellar job, but the future of the office is uncertain. The auditor-general is worthy, but often ignored.

The Human Rights Commission is — not to put too fine a point on it — pretty useless.

The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, apart from being such a mouthful, is an indulgence.

There's absolutely no need for such an organisation, especially given that the Human Rights Commission is supposed to discharge the same function. It was essentially established to appease certain Afrikaner groups who felt threatened by the advent of democracy.

And the less said about the Commission for Gender Equality, the better. South Africa has one of the highest rates of violence against women in the world, and this commission has become a bystander amid the carnage.

Former minister of water affairs Kader Asmal was given the task to look into Chapter9 institutions, with a view to a rationalisation — or even consigning some of them to the scrapheap. His report never saw the light of day — becoming one of the casualties of the Polokwane putsch that brought the nightmare that is Jacob Zuma into power.


It's understandable why the ANC won't act on such a report. These institutions have become a haven where the organisation "parks" some of its friends. It is jobs for pals. They are always looking out for each other, and these institutions have provided lucrative employment for idle and superfluous cadres.

Putting pliable sycophants in charge renders these institutions ineffective or makes them unwilling to question government policy or action.

The exception has, of course, been the public protector, which has been unflinching in its dogged pursuit of government malfeasance. But that's thanks mainly to Thuli Madonsela's unwavering determination.

Hopefully her tenure will not come to be seen as our Prague Spring, a period of promise that ultimately fades away. The signs are not very good though. Her successor — to use popular parlance — has already been captured.

Zuma, his government and parliament could defy Madonsela's rulings because she was seen as an outlier, her conduct not being in keeping with other Chapter9 institutions that have been coerced into doing the bidding of the state.

The constitution states clearly that "no person or organ of state may interfere with the functioning of the [Chapter9] institutions".

It was as if Zuma and his cohorts could not read. It took the Constitutional Court in the Nkandla case to drive the message home.

Democracy is always a work in progress. Even societies that are centuries old are still at it, tweaking and searching for that recipe for a better life for their people.

Ultimately, however, it is that four-letter word — the vote — in the hands of an active and informed citizenry that is an effective bulwark against the abuse of power.