The populist view is that the country’s Constitution needs changing, either because it is eurocentric or does not accord with African traditional norms or values, but often the proposition is short of a cogent explanation as to what the envisaged replacement should look like.
There are several political leaders, including the leader of the ACDP, Kenneth Meshoe, who subscribes to the Westminster-type system, which carries no provision of a bill of rights but is laden with parliamentary sovereignty doctrine – a form of parliamentary supremacy trappings where legislation is the final word, however unconstitutional.
To make the point, in the pre-democracy South Africa, under the rubric of parliamentary sovereignty dictates, unconstitutional and discriminatory laws, such as pass laws, were legislated by parliament, and made statutory laws of the country to oppress black people.
Pass laws were discriminatory and would, under the current constitutionalism, have never seen light of day because they would fail the constitutional muster – a requirement for the legislation to be passed and certificated.
Parliament had the authority to pass any law it deemed fit without undergoing constitutional muster – a process applied to review the constitutionality of the law – whether it meets the rigours of the Bill of Rights such as embedded in the Constitution today. All laws in our current dispensation subscribe to the values of human dignity, human rights and that everyone, irrespective of their station in life, is equal before the law.
Additionally, the Constitution enjoins all state organs not to unfairly discriminate directly or indirectly against anyone on grounds of race, gender, sex, pregnancy, marital status, age, ethnic or social origin, sexual orientation, age, disability, religion, conscience, language and birth.
The Bill of Rights places a premium to human dignity and the right to life, that no one has the right to take the life of another person, whatever the circumstances may be, except in self-defence.
Juxtaposed with parliamentary sovereignty or supremacy, we can see that under this system human rights and dignity were, at the stroke of legislative pen, people had their rights taken away.
One example relates to the way in which the apartheid system used its laws to issue banning orders to restrict political activities of political activists opposed to the unjust laws meted out by the apartheid regime against black people.
Banning orders were draconian, using sledgehammer tactics to constrain political activity opposed to apartheid.
Under the parliamentary sovereignty system, a cabinet minister could legislate a draconian law such as the banning order, which was routinely used by the apartheid’s special branch or police, to restrict, through banning orders, those the apartheid system perceived to be a danger or a threat to the unjust ruling class.
Former president Jacob Zuma, and now leader of uMkhonto we Sizwe Party (MKP) in recent times has added his voice to a clarion call for a radical change of the Constitution as we know it – describing it as incapable of meeting the demands of the African people, and that it was an aberration to traditional leaders, failing to give them the honour they deserve.
Zuma, addressing a church meeting aligned to his political ideology of narrow African nationalism, as well as his political base, suggested that when his party won an outright majority, his government would “exile teen parents” on Robben Island, arguing that “according to the law, a child should not give birth to a child”.
Zuma said the MKP would build a university on Robben Island for pregnant teenagers to complete their studies.
Zuma’s thinking is informed by the prescripts underpinned by parliamentary sovereignty system, where voices of legislators have the final say, and would never come under the scrutiny of constitutional muster to determine whether the laws make it or not to the country’s statutes.
EFF president Julius Malema has been ambivalent about the efficacy of the Constitution.
Addressing the party’s Students National Assembly, Malema, to applause, said “the Constitution of South Africa … was a constitution of sunset … we now need a sunrise constitution because the sun can’t set permanently. We need a constitution that will say the state is the custodian of the land.”
Those who seek to change the Constitution have a hard task ahead of accomplishing it – they at least need two-thirds of the members of the National Assembly to achieve their objectives. In the National Council of Provinces, at least six provinces must accede to the demand for amendment.
- Mdhlela is freelance journalist, an Anglican priest, an ex-trade unionist and former editor of the South African Human Rights journals
