Assembly votes to amend Constitution amid scenario planning for 2019 election, legal challenges

The Struggle song on black land dispossession and pain, Thina sizwe esimnyama, sikhalelela izwe lethu… (*) resounded from the parliamentary benches of the EFF and ANC, and from a few other seats, as MPs stood waiting for the division the DA requested. Parliamentary tradition requires the bells be rung for five minutes. When the vote result was announced, it was 209 for and 91 against a constitutional amendment for land expropriation without compensation as recommended by the joint constitutional review committee.

That the vote happened on the eve of the birthday of Black Consciousness leader Robert Sobukwe, the founding president of the Pan-Africanist Congress (PAC), brings to full circle a 10-month process that started with the EFF motion, as amended by the ANC, being adopted on 27 February 2018, the 40^th anniversary of Sobukwe’s death.

After Tuesday’s vote and adopting, in a quick-fire step, ANC Chief Whip Jackson Mthembu stood on a point of privilege to announce that on Thursday, the last sitting of the National Assembly for 2018, the governing party would bring a motion to start the constitutional amendment drafting, most probably through an ad hoc committee or one established for a particular purpose.

The numbers had stacked up for the approval of the joint constitutional review committee report for weeks. Alongside the EFF and ANC, support came from the United Democratic Movement (UDM) and National Freedom Party (NFP), while during Tuesday’s debate also in support emerged the African Independent Party (AIC) and African People’s Convention (APC), with its MP Themba Godi calling it “a beautiful and befitting gift to Sobukwe”.

It’s really about the politics, and always has been. And the politics are rough and ready in the months before the 2019 elections.

For the DA, it’s about styling expropriation without compensation into a rallying cry at the hustings that it’s now up to South Africans to use their votes to prevent the EFF and ANC from returning with sufficient numbers to affect a constitutional amendment to undermine property rights. That was the refrain from its speakers in Tuesday’s debate.

Or as DA MP Glynnis Breytenbach put it:

“This election road show for the EFF, paid for by Parliament and supported by the ANC, is nothing more than a cruel hoax. It has allowed thousands upon thousands of South Africans to believe that they will each receive a plot of land. Of course, the ANC has nothing of the sort in mind…”

Like the DA, other opposition parties opposed to compensationless expropriation also pointed out how the EFF led the public policy debates with the ANC under its thumb.

“(T)he EFF tricked the ANC to support their motion regarding expropriation without compensation in Parliament. From that moment on, the EFF led the way in the matter and the ANC merely followed,” said FF+ Chief Whip Corne Mulder.

But for the EFF and its leader Julius Malema that’s not necessarily a bad thing. Having led the land expropriation push is a definite election ticket, and one that fits into the current race identity politics the party is pursuing.

“This is happening after the successful motion of the EFF… And therefore anyone else, who doesn’t want to hear this fact, is this person that wants to distort history,” said Malema in the debate, in a clear reference to the EFF motion of late February.

The process was fair, everyone was heard in the public consultations, but if this had been a referendum it would have come down 90% in favour of expropriation without compensation.

“White people, who came (to the public hearings) all of them… came in unison and opposed the expropriation of land. Where white interest and privilege is threatened, they protect each other. Why would people think alike like that, if it is not an issue of racism and privilege…”

And so, added Malema, “black unity, in particular African unity, is very important”, in an echo of what he said in late February 2017 when his motion on land expropriation without compensation was rejected on the back of ANC numbers with 261 votes in favour and 33 against – a move that led then president Jacob Zuma to censure his ANC parliamentary caucus.

On Tuesday, at a media briefing after the vote, Malema said it had been an important day. But there was just a hint of the behind-the-scenes politicking when Malema said that if the ANC chief whip had not risen on the next step, the EFF would have pushed for the start of the Constitutional Amendment Bill process.

And here the future dispute will lie. The EFF in late February was content to have its state land ownership-focused motion amended by the ANC in return for support from the governing party whose focus is on a mixed economy in which compensationless expropriation is one means of land reform. That arises from the carefully phrased December 2017 national conference resolution that was adopted after a last-minute push, quite literally, from the radical economic transformation grouping.

The EFF may not again be quite so accommodating, particularly if the 2019 elections turns out as it hopes – with more votes, and more public representatives. As far as the EFF is concerned, victory of the ANC under President Cyril Ramaphosa is not guaranteed. And if Ramaphosa’s Thuma Mina ANC does not win outright, they would need the EFF.

“We might not want to amend the Constitution on the eve on elections,” said Malema, in reference to the possibility of a return to Parliament with greater numbers – and being able to push for land nationalisation.

Without doubt there’s plenty of scenario forecasting all round. Or call it strategy and tactics planning.

Many things are up in the air. While the ANC will table the motion for the next step – an ad hoc committee and Constitutional Amendment Bill drafting – it’s not clear when it would start working. Strictly speaking there are just seven working weeks left for this Parliament, which returns from recess on 7 February 2019 and rises on 2 April 2019. The 2019 elections are set to be before the end of May, as President Cyril Ramaphosa let slip, and the rumour mill seems to be settling on 5 May.

It’s unrealistic to expect the constitutional amendment to be finalised by the current Parliament, even if that’s what the report says. And Daily Maverick has reliably learnt the required law of general application – the Expropriation Bill – is again being delayed at Cabinet level and was not expected to be published for public comment by year end.

In this game of scenario planning the ANC is hoping pressures would be eased by what party jargon calls an “overwhelming victory”. It’s not guaranteed though. And so the ANC speakers in Tuesday’s debate focused on process – it was all fair – healing the “original sin” of dispossession, history lessons in colonial and apartheid dispossession (the ANC was formed because of these discriminatory land laws) and styling the ANC as the party that had listened to South Africans in the countrywide public hearings where compensationless expropriation emerged as shorthand for social and historic justice.

“Certain sectors of the South African and international (communities) continue to misrepresent the proposals,” said ANC MP Vincent Smith, clearly in reference to some of the global lobbying by AfriForum, Freedom Front Plus and others.

“These sectors mischievously say our stance is informed by an anti-white agenda. The ANC never said whites or anyone should be discriminated against.

“Is about redressing the original sin of dispossession… This land is our land and we believe that meaningful reform that results in all of us, black and white, with equal access (to land) can no longer be postponed… Those who opposed the access to land (by all) must be remembered. It is those people that will keep us back from created (sic) a united, prosperous democratic SA.”

The DA at a media briefing on Tuesday said it would head for the courts if the joint constitutional review committee was passed by Parliament. This could happen as soon as Wednesday afternoon after the National Council of Provinces (NCOP) deals with the report.

The immediate reaction of AfriForum, the alt-right grouping that said its fight against the “acceptance of the report will be continued in the courts at full steam”, and to some measure that of AgriSA, was also to continue legal challenges.

“AgriSA will continue to pursue all credible avenues to protect the interests of farmers and farming communities, including challenging an amendment of section 25 in court. Yesterday’s decision by Parliament is not the final step in the process, and there is time and legal remedies remaining to halt an amendment,” said the statement by organised agriculture.

There is a long road ahead, and the 2019 elections are key, in how expropriation without compensation will pan out, away from electioneering rhetoric. DM

* Known by its shorthand “Thina sizwe”, this Struggle song is about black South African land dispossession. It was sung by then president Jacob Zuma at the 15 December 2013 funeral of Nelson Mandela at Qunu, Eastern Cape, and at the memorial for Winnie Madikizela-Mandela. The Freedom Front Plus in July 2018 got hot under the collar when the song was sung as part of the World Choir competition. The lyrics roughly translate as: Thina sizwe esimnyama – We the black the nation; Sikhalelela izwe lethu – We are weeping for our land; Elathathwa ngabamhlophe – Which was taken away by whites; Mabawuyeke – They should leave it; Mabawuyek’umhlaba wethu – They should leave our land alone.