What strong and convincing pre-mi-se is there to call for the scrapping or changing of the country’s Constitution, and if this happens who knows what SA’s constitutionality might look like in the future?
Do we ever think about these important considerations, and the impact they might have on our democratic and constitutional architecture?
But why would there be a need and appetite to change, if we take seriously the fact that our Constitution is highly regarded by other equivalent jurisdictions worldwide?
Would this desire to change be motivated by political expediency inspired by ideological differences?
Already some political parties have expressed antipathy towards the Constitution, describing it as eurocentric, with some claiming it fails to embrace African or indigenous legal systems, and that it largely influenced by Roman-Dutch law.
In its manifesto, for example, the opposition uMkhonto we Sizwe Party (MKP), is explicit that “The post-apartheid reconstruction cannot be facilitated by a liberal constitution that constrains the power of the majority.”
But this argument is flawed. In the past, during the apartheid era, parliamentary supremacy or sovereignty ruled supreme.
If parliament enacted laws that were regarded as supreme, such a legislation that was oppressive to one section of society such as pass laws of the apartheid era there would be fewer recourses to reverse such laws. This was because parliament had the final word on all matters.
This is known as parliamentary sovereignty, which means if the MKP were to win an election and form a government, the country would be back to the apartheid way of doing governance in which the word of parliament would be final.
This means that the MKP favours a political system that has no protection, such as the judicial review, to safeguard the masses who would have voted it into power, leaving them unprotected from bad governance and arbitrariness and illegality.
In countries where constitutional supremacy applies, the powers of parliament are curtailed. Which means whatever legislation is passed, the requirement would be that such law should pass constitutional muster.
The argument MKP advances is that it has reservation with a constitution that “constrains the power of the majority”.
The imputation of its argument is that the party takes issues with the principle of counter-majoritarian dilemma, in which “unelected judges” have the right, through a judicial review process, to -subvert political gains conferred on the governing party by the masses in an election. This, the MKP, regard as undemocratic.
Constitutional experts aver that constitutions are not written in a vacuum. They are written considering the needs of society.
Pre-1994, the country was in constitutional and political logjam – and therefore in social turmoil. The apartheid laws oppressed the people, and it was the people’s power that overthrew the evil system.
We would all wish to have an epiphany of some kind to kindle our paths and walk us through the murky landscape of speculative thinking.
Remove or change the Constitution, then all our political turmoil, our high unemployment rate, and our skyrocketing woes of unprecedent murder rate in this land, will end.
Thirty years after the 1994 democratic breakthrough, should changing of the Constitution be a priority?
These difficult questions are raised, but those who raise them do not always produce well thought through scholarly papers or sharpen their theses to make a solid case for their position – a necessary ingredient when you want a thing such a country’s constitution to be changed.
It is often argued that discernment is a kind of process in which we interrogate, analyse, interpret, evaluate and make a good call about what we propose to do so that we leave everyone convinced about our good intentions.
So, if we dismantle our current order, which is the Constitution, what are we left with during the interregnum?
Consistent with the view, there is a notion that the Constitution, to be properly validated, needs to be vested in indigenous or African garments, so that “we can see ourselves in our constitution”.
It behoves mentioning that during the Constitutional Assembly, which was tasked with the drafting of the Constitution, about 2-million public submissions were made to the assembly – all in aid of forming a democratic republic and the creation of the supreme law, which is the Constitution.
Additionally, the Constitution we envisaged would be imbued with a bill of rights that outlaws any form of arbitrariness and the flouting of the rule of law and illegality.
- Mdhlela is a freelance journalist, an Anglican priest, an ex-trade unionist, and former editor of the South African Human
