Johannesburg – I’ve been wrestling with whether or not I am too uncritical of our constitution.
I don’t think so, but it may be useful to frame the ongoing debate about whether or not our constitution is sufficiently, if at all, pro-poor.
Is our constitution, furthermore, conducive to racial justice being achieved for the twin legacies of colonialism and apartheid?
One of the policy areas to which this debate has been linked to is, of course, land reform.
Land reform has been inexcusably slow
That is why the EFF has been right to make a big political deal out of the unjust reality that stolen land has not been returned to its original owners.
The extensive and systematic historical dispossession of black people’s land is an injustice that the first democratic government should have attended to with haste.
That has not happened.
Monies allocated for land reform have been hopelessly little, and that is quite apart from a useless bureaucracy that has not processed claims properly and swiftly.
The state has not even done an authoritative audit of how much land is under state control, before we even get to land passed down by the original thieves to their current nominal owners, the children of hegemony.
So, I cannot see any reasonable disagreement one can have with critics of land reform, and with activists who are fed-up with the government.
If we take justice seriously, then we should by now have dealt with the land question far more effectively. We haven’t, and that is a stain on our democracy.
But what doesn’t make sense to me is why the constitution is repeatedly put on trial for the state of land reform. We do not have a constitutional hurdle to jump over.
We have a political hurdle to jump over. This ANC-led government has not done what the law, including the constitution, already allows it to do in terms of land reform.
The ANC doesn’t care about attending to history’s injustices and that is why millions of black people remain dispossessed of what was stolen from us. We should blame the government and not the constitutional text.
You can amend section 25 of the constitution and still experience the status quo.
Constitutional amendments do not compensate for poor governance. We need a
government that tests the limits of section 25, including expropriation without market-based compensation, and see how legal adjudication plays out if unjust owners of land do not play ball.
The government simply doesn’t care and we need to see this elementary disappointment for what it is, political and leadership failure.
But this column isn’t, at its core, about land reform. We could also be tempted to put the constitution on trial for queer hatred.
Our Bill of Rights is the first constitutional text that explicitly outlawed discrimination on the basis of sexual orientation. Yet many queer South Africans are harassed daily, and some are even raped and killed in crimes motivated by queer hatred.
Do we blame the constitution (or, for that matter, other sources of law) for hate crimes? Should we?
The answer is obviously “no”. You cannot legislate progressive attitudes. You cannot hope that the mere adoption of a legally enforceable human right will transform the hatred in someone’s heart so they become, for instead, an ally of gay people. This latter goal requires bottom-up social and political work.
I am not implying that constitutions do not matter. Of course they do, but then we have to remind ourselves of their core role in society.
What excites me about our constitution is that it provides a normative yardstick for continuously assessing ourselves. It is an expression of our ideal selves, an expression of that which is desirable.
So we have to work hard to close the gap between vision and reality.
We should use the text as a guide for what to aim at. That is a powerful catalytic role.
Ultimately, however, the actual material transformation of South Africa depends on the interplay between social and political drivers, and jurisprudence.
By Eusebius McKaiser.
Follow @SundayWorldZA on Twitter and @sundayworldza on Instagram, or like our Facebook Page, Sunday World, by clicking here for the latest breaking news in South Africa. To Subscribe to Sunday World, click here.
Sunday World
