Solid even when under fire, SA Constitution is here to stay

One of the staple subjects of English-language talk radio in our country is people who phone in to suggest the Constitution should be changed.

Perhaps most often it is about the rights the Constitution gives to people accused of criminality, and the fact that it can be so difficult to get a conviction.

For some, this takes the form of moments when someone like Matshela Koko is able to walk free from court. But for others, it is literally the difference between life and death. They see the law, and thus the Constitution, as responsible for the fact they cannot deal with criminals in their communities.

Perhaps the most spectacular symptom of this is the fact that someone like Xolani Khumalo is able to make money out of torturing alleged drug dealers on his former television show Sizokhutola.

But there are also other demands to change the Constitution, particularly around foreign nationals. This is because of the perception, backed up by what people see in their communities, of some people from other countries having incomes while they do not. 

Again, it is the Constitution which is blamed.

Also, from time to time, high-profile figures claim that the Constitution needs to be changed.

In recent years the most contentious issue has been about land expropriation without compensation. This saw the ANC technically agreeing to change the Constitution at its 2017 Conference.

That led to huge reverberations.

However, the Constitution also has millions of supporters, and even those who want it to be changed may support almost all of the rest of its clauses.

This is because many people, probably a majority, are strongly aware of what the Constitution gives us.

In the years after it was adopted, so many copies of the little booklet were published, that most people have a copy (one can still see advocates thumbing through it in court).

But more important than that, people are aware that it is the Constitution which gives them the right to life, to remain silent, the right to information, the right to organise and protest, and so much more.

In short, for many people, the Constitution is the document that gives them the right to be fully human.

However, as many have argued, the Constitution may give people many rights, but it does not enforce enough obligations. This has led to criticism that in fact we also need a “bill of responsibilities”.

At the same time, it is obvious that many of the problems that millions of people face in their daily lives are not the fault of the Constitution. They are really the fault of the choices made by those in government.

It is not the fault of the Constitution that the ANC government has decided to cut the budget for the NPA, while increasing the budget of the VIP Protection Unit (NPA Head Shamila Batohi described the fact the VIP Protection Unit gets 74% of the budget of the NPA as “revolting” in an interview with the Sunday Times this last weekend).

It is also not the fault of the Constitution that State Capture happened. Or that the ANC elected and defended Jacob Zuma as President despite evidence that he was involved in corruption.

That said, these complaints about the Constitution, about something so fundamental to our lives, about something that allows us to live lives as full human beings, are vitally important.

They are really a complaint about our lived reality. They are also a warning to government, and those in positions of power in the current system. They are a symptom of the anger felt by so many, directed at our current reality.

Unfortunately, it is likely that calls for the Constitution to be changed will only grow, as levels of frustration and discontent will rise.

This is also because several political leaders will try to harness this frustration for their own ends.

They will seek to promise to change the Constitution.

Also, as our politics continues to fracture, it is likely that more and more people will make this promise, they will claim that changing the Constitution is the answer to our problems.

It could be that many political parties will now treat the Constitution almost as a stalking horse. It will be a document they can use to blame for our current problems, while speaking to different constituencies. And, crucially, it will allow them to avoid responsibility for their own shortcomings or lack of action.

But this also means there will be less and less consistency to these promises, people will make all sorts of contradictory promises.

As a result, despite all of the heat around the issue of changing the Constitution, it is in fact less likely to be changed.

At the moment, the ANC in conjunction with either the DA or the EFF would have the power to change the Constitution (changing the Constitution requires a two-thirds majority in Parliament). And for the moment, there seems very little prospect of that happening.

While the ANC and the EFF both claimed to want to change the Constitution to allow the expropriation of land without compensation, even they could not agree on what would happen to that land afterwards.

And if they cannot agree on this issue now, it seems less likely that they, or any other combination of parties could agree on any changes after the election. It is likely that next year the National Assembly will have more parties with smaller shares of the vote, making any change much more difficult.

This means that the Constitution, in its current form, may well be unchanged for many years to come, unless there is some kind of political earthquake. The document as it is currently printed in its little booklet will likely remain the same as it is now. Which also means the protections and rights it confers, and the obligations it places on government may remain in place for many years to come.

And government is likely to continue to fail to fulfill those obligations. Leading to more anger, and more frustration. And more calls for the Constitution to be changed. DM