The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
Last week President Jacob Zuma told ANC supporters in KaNyamazane, near Nelspruit, that the party wanted a “huge majority” to change “certain things” in the Constitution because there were “certain hurdles” in the Constitution. The President’s remarks caused a predicable outcry. But in the absence of details about which particular sections of the Constitution the President believed presented “hurdles” to the ANC government, the outcry was nonsensical. This is so because there is nothing inherently problematic in changing the Constitution. It would be better to focus on the words and (especially) the deeds of the Zuma government over the past five years to try and establish which sections of the Constitution are seen as stumbling blocks to governing the country.
As Jane Austen, the constitutional scholar, might have written: “It is a truth universally acknowledged, that a political party in government in a constitutional democracy must be in want of amending the Constitution. However little known the feelings or views of the leaders of such a party may be on them first entering government, this truth is so well fixed in the minds of the middle classes, that any talk of amending the Constitution by the leadership of the party will send the elites into a panic.”
It is not always clear whether such a panic will be justified. It is only when the governing party wishes to amend the Constitution to weaken the checks and balances on its power because these checks prevent it from undermining democracy, from entrenching its power in undemocratic ways and from disregarding the human dignity of those who live in that democracy, that the alarm should be raised.
The South African Constitution – like almost all modern Constitutions – provides for its own amendment albeit with heightened majorities. The founding provision in section 1 of the Constitution can be amended with the support of 75% of the members of the National Assembly (NA), while the rest of the Constitution can be amended with the support of two thirds of the members of the NA. An amendment to section 1, any provision in the Bill of Rights, and any provisions relating to provinces also requires the support of six of the nine provincial delegations to the National Council of Provinces (NCOP).
Since 1996 the Constitution has been amended on no less than seventeen occasions. Apart from the floor crossing amendments, amendments to the jurisdiction of the Constitutional Court, amendments to the appointment of the leadership of the Constitutional Court and the Supreme Court of Appeal, and amendments to the tenure of Constitutional Court judges, the amendments were of a relatively technical nature.
Over the past five years several events suggest that sections within the governing party – driven by traditional values and a kragdadige (autocratic) view of state power – are irritated by aspects of the Constitution that protect the human rights of all citizens. I will highlight some of these events here and will identify those aspects of the Constitution that place “hurdles” in the path of this section of the governing party to implement their vision for the country.
First, the introduction by the government of the Traditional Courts Bill, as well as moves late last year to force ANC controlled provinces to reverse their opposition to this Bill, present serious constitutional challenges to those who are championing the Bill. This is so because the Bill, aimed at enhancing the powers of (overwhelmingly male and undemocratically appointed) traditional leaders, is in conflict with several sections of the Constitution.
These include those sections of the Constitution which prohibits sex and gender discrimination (section 9); state that the right to practice your culture “may not be exercised in a manner inconsistent with any provision of the Bill of Rights” (section 31(2)); and state that the “institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution” (section 211). It is also almost certainly in conflict with one of the founding values in section 1 of the Constitution which establishes South Africa as a democracy based on “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”
Second, the Marikana massacre and what now seems like the subsequent police cover up, as well as widespread and increased police brutality over the past five years – just this week Tshwane Metro Police shot dead a vegetable vendor for refusing to hand over his stock to the police – suggest that elements within the government may wish to dispense with certain fundamental human rights safeguards that render the abuse of power by the police illegal (even if, sadly, it does not prevent it from happening).
Several sections of the Constitution stand in the way of the government formalising these kinds of police brutality as normal and lawful. Section 10 of the Bill of Rights proclaims that everyone “has inherent dignity and the right to have their dignity respected and protected” (but tell that to a police officer and see how far it gets you); while section 11 states that everyone has the right to life (in other words, a right not to be killed by the police for allegedly taking part in a violent strike).
Moreover, section 12 guarantees for everyone (including non-citizens) the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause; not to be detained without trial; to be free from all forms of violence from either public or private sources; not to be tortured in any way. Section 35(3) states that every accused person has a right to a fair trial, which includes the right to be presumed innocent, a right that is breached when the police take the law into their own hands and shoot and kill people for allegedly breaking the law.
All of these sections of the Constitution will have to be scrapped if the police is legally to be given a free hand to pursue and punish those who they decide are “criminals” (without the benefit of a trial). Given the fact that few police officers are ever prosecuted for assaulting or killing ordinary citizens and given that the government has largely remained silent about such gross abuses of power by the police, a cynic may well begin to believe that the sections of the constitution mentioned here are seen as some of the “hurdles” that have to be removed by amending the Constitution.
Over the past five years the government (at especially local government level) has also increasingly been involved in the unlawful eviction of especially poor people from their homes. In this the DA government in Cape Town has found common ground with ANC councils in other parts of the country, even inventing a non-existing law to justify the unlawful eviction and demolition of shelters of people.
One would therefore assume that even without an overwhelming electoral victory, the ANC and the DA could easily get rid of this perceived constitutional “hurdle” by scrapping section 26(3) of the Constitution which states that “[n]o one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”
The one article I have not mentioned is section 25 of the Constitution, which guarantees the right to property, while placing a duty on the state to effect land reform. As I have written before, despite the fact that the section does not require the state to pay market value for all properties expropriated for land reform, the government has persisted in doing so. Recently the government paid more than one billion Rand to the owners of Mala Mala in a land restitution matter, confirming that it is comfortable to pay vast sums of money to (certain) private land owners. Despite the fears of middle class land owners, this section on property rights therefore seems relatively secure and is not viewed as one that presents a “hurdle” to the government.
Of course, it is unlikely that the ANC will make any of the changes to the Constitution that their record in government suggest they would like to make. This is so, first, because the party is not likely to obtain a two-thirds majority in the election and,second, because the business men and women who fund the ANC and it’s leaders are not in favor of such changes as such changes will spook “the market” as well as the much vaunted “international investors”.
I would therefore suggest that both the media and voters would be better off ignore the statements of President Jacob Zuma about changing the Constitution and to view it as no more that empty election rhetoric aimed as sounding “radical”.
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