The South African constitution of 1996 remains a hotly contested document, with some of its harshest critics wishing for its demise and striving to show by argument and innuendo it is not fit for the purpose it seeks to serve, and so it must be changed, or Africanised.
They argue it is eurocentric, and therefore, unable to meet or fulfil the demands of the “African people” and so must be thrown into the dustbin of history because of these imperfections.
The critics also argue that the constitution is a hindrance in so far as the return of the “stolen” land to its rightful owners is concerned.
They argue that section 25 of the constitution does not adequately address the question of land expropriation without compensation and should, therefore, be changed.
Not even the Bill of Rights or Chapter 2 enshrined in the constitution impresses the critics. The fact that the constitution is founded on the principle of creating a democratic state founded on the values of human dignity and promotion or advancement of equality, the supremacy of the constitution and the rule of law, among others, will convince them to think differently.
Might it be that the contested terrain in which the constitution operates is informed by ideological differences pervasive in our politics, so shrouds clear and logical thinking?
This we can never know.
Yet, if this were to be the reason for the constitution’s demise, this seems to be an implausible reasoning if we consider for a moment that such a proposition might not be backed up by objective reality.
To pursue this line of thinking, it seems to me, is to negate without a sound premise the objective fact that the constitution is a direct product of the Constitutional Assembly of 1996, and therefore the participation in its creation involved communities from diverse political and ideological orientations.
Why, then, would the constitution be intolerable to some section of the population if this argument were factually true?
Why would it require changing when provisions for its amendment already exist?
Any provision of the constitution can be amended, and section 74 of the constitution provides for this reality.
We know communities are angry. The source of their anger stems mainly from non-delivery of services, which ought to be a responsibility that falls squarely on the shoulders of municipalities or metros.
It is not the constitution that fails to deliver services to the people. It is the politicians, administrators and political parties that are responsible for the decay and degradation that ensue in our country. It is the people we have elected to run our affairs who are a let-down, and not the constitution.
The often-raised imperfection about the constitution is that it is eurocentric, and so fails the litmus test to reflect the African flavour and particularities embedded in the African continent. That too can be fixed through the amendment process already available for use if we wish to Africanise the constitution.
Also, the constitution as we know it today, and since its origins as an interim constitution, has not enjoyed full support or admiration of all the people of the country, often seen by some as an extension of the ANC’s Freedom Charter – a document cobbled together nearly 70 years ago at the Congress of the People gathering in Kliptown, Soweto, in 1955.
In later years, from the 1960s onwards, the Black Consciousness Movement, spearheaded by the likes of Steve Bantu Biko, widely regarded as the father of the Black Consciousness, came to the scene, and in no uncertain terms rejected without reservation the charterist movement and its appeal to the notion of liberalism, often expressed in the notion that “the land belongs to all who live in it”.
The arrival of European settlers in the country in the 15th century or around that period marked for the African people the period that kick-started the colonisation era, with all its trappings, including dispossession and white domination, which would result in the imposition of the cruel apartheid system that continues to this day to dispossess and oppress of the African people.
But the fundamental question ought to be: why is the country’s constitution a subject of scrutiny, and in some instances, of derision, among some?
The constitution is a “founding document” of a new land emerging from ravages and ashes of colonialism and apartheid-ridden establishments; it is the supreme law of the country. It protects us from the tyranny of the majority and racists who populate our land.
- Mdhlela is the acting news editor of Sunday World, an Anglican priest and former editor of the South African Human Rights Commission journals.
