An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
I am not a politician – thank goodness. I don’t want my phone tapped by National Intelligence, I don’t want to stand on platforms calling for my machine gun or dancing to a sexists ditty named “Koekie Loekie”. Nor do I want to say nice things about the leader of my chosen party whom I might think is an idiot, a crook or a shrill pessimist. But as someone who really believes in the Constitution and the promise of a better life for all enshrined in it, I have to say that it it is sad that not more was said during the election campaign about service delivery and access to jobs, houses and good medical care.
The ANC made brilliant use of the fact that it had recalled President Thabo Mbeki and that some of the former President’s loyal foot soldiers had formed a new party. This allowed the ANC not to have to defend their shaky record in office over the past fifteen years. They could hint (or sometimes say directly) that it was all Mbeki’s fault that some councilors are lazy and corrupt, that the electricity does not always work, that some roads are full of pot holes, that some state hospitals are dysfunctional, that the police seem incapable of dealing with crime and that we still have not eradicated the bucket system.
At the same time the ANC could take credit (as it should) for expanding the social insurance net, building millions of houses and providing access to clean water for millions more of South Africa’s poorest citizens. People – especially those who are not part of a disgruntled and bitter minority – want to vote for their hopes, not their fears.
Instead of focusing sharply on the hopes the electorate have for a creating a better life for themselves, the opposition parties seemed to have focused far too much on the fears of minorities and of the middle and upper classes. So they focused on Mr Jacob Zuma and on the possibility that the ANC would get a two-thirds majority and will change the Constitution. But they did not say why changing the Constitution would be a bad thing and how this might affect the lived reality of ordinary people.
Fact is that the ANC has already used its current two-thirds majority to change the Constitution several times. The most problematic and unpopular amendment to the Constitution was made to change some provincial boundaries to eradicate cross-boundary municipalities. This led to vigorous resistance from communities in Merafong, Matatiele and Khutsong. People in these communities became active citizens, resisting the high handed and bureaucratic decision of the technocrats whom they believed was not in their interest.
The “new” ANC under Mr Jacob Zuma actually listened to these voices and have revisited the decision to incorporate these communities into the North West Province and the Eastern Cape. Because of resistance by citizens an unpopular decision was reversed. This is a good sign and holds a lesson for all who wish to defend the Constitution against the possible amendment by an ANC with a two-thirds majority.
This lesson is that people will resist the shenanigans of the majority party if they really believe that this will affect their lives. And our Constitution will thrive only if ordinary people are prepared to defend it against possible abuse. When we talk about the Constitution, we therefore need to convince people that the Constitution is a truly transformative document and that it will help to deliver a better life for all. We need to talk much more about the social and economic rights in the Constitution and how our courts have often intervened successfully to stop the ANC (or DA) governments from cutting off people’s water, evicting them from their houses, and denying them access to basic health care. Astonishingly, opposition parties hardly made this argument, instead making abstract arguments about defending the Constitution and the Rule of Law.
Respect for the Rule of Law is, of course, very important. Some actions of the ANC leadership and of the government it has lead over the past five years, suggest that respect for the Rule of Law is under threat. The firing of Vusi Pikoli, the way charges came to be dropped against Mr Jacob Zuma, the unconstitutional passing of laws by several Provincial Legislatures to give money to political parties to run their election campaigns, and the failure of several provincial governments to follow the law in the allocation of housing and social grants must trouble us all.
But this will remain an abstract issue for ordinary citizens unless they believe that the failure to respect the Rule of Law will effect them directly. I cannot understand why opposition political parties have not made a stronger argument about the dangers of fhe state not following the pre-announced legal rules. It is easy to show that where rules are not obeyed, corruption thrives and those who have money to bribe or who have connections with the ruling elite gain unfair access to services while the poor and marginalised unfairly are denied such access.
We will have to see whether the ANC appreciates this and whether they will follow the example of Khutsong or that of Vusi Pikoli. But perhaps until opposition parties can connect the abstract concerns of the chattering classes to the real concerns of ordinary voters, the ANC probably does not have much to worry about. And if a governing party does not worry sufficiently about what voters need and want, the voters suffer.BACK TO TOP