Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
23 April 2009

On a two-thirds majority and changing the Constitution

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.

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