A constitution under siege is a nation under siege
t seems First Citizen Jacob Zuma needs help with matters constitutional, or is it that the Constitution needs help with Zuma?
One way or another, the nation should make up its mind about which entity needs it most.
Several conflicting interpretations of the Constitution come to mind. A recent instance is Zuma’s challenge to the Financial Intelligence Centre Amendment Bill. As first citizen, he perused the bill for six months before returning it to Parliament on the grounds that warrantless searches were unconstitutional. Turns out they aren’t and, presumably, Zuma will now do what Parliament says and sign the thing into law.
Conspiracy theorists might say Zuma had known this all along but that he and others needed time to do what they had to do, whatever that might be. But who needs theorising?
Evidence will do, such as that supplied by the president of the Progressive Professionals Forum‚ Mzwanele Manyi, who told us that the amendment would bankrupt the ANC. This is proof, says the EFF, that the ANC is “funded on ill-gotten gains”.
No? Really? Who needs the EFF anyhow?
Oh, right, Zuma does. And, again, it is a constitutional matter. This time, though, the president is not seeking constitutional protection, but protection from it — Section 25 of the Bill of Rights, to be specific.
Zuma says he needs “black” parties to unite to change the Constitution to permit land “restitution” sans compensation.
He probably refers to an amendment to subsection 2(b), which prescribes compensation for expropriation.
We should allow for the possibility of an honest error, if only to avoid having to describe the presidential uttering as disingenuous in the way it conflates expropriation without compensation with the universally supported restitution policy.
But even if it is not another of Zuma’s oratory peccadilloes and he means that the act of taking property is in itself an act of restitution, whether it is redistributed or not, it might be tricky to garner a two-thirds parliamentary majority.
Changing subsection 2(b) will not be enough. He would have to scrap the entire section so that privately owned property is no longer a right and ownership would not have to be defined.
This might not go down well considering that property is not limited to land, as determined in subsection 4(b).
There is also that pesky little jurisprudence idea, admirably expressed in the Constitution, that all laws must be laws of general application. This would allow the state to seize anyone’s property without the requisite justifiable discrimination based on dispossession by previous racist regimes.
It means that, under the principle of general application, no private property will be exempt from expropriation without compensation. Thus, black people may never own the land they are being rallied to claim through an amendment to the Constitution.
But hang on a minute. Is that not how things stand? The supposed beneficiaries of land reform are not being granted title to the land supposedly redistributed to them. The state owns it.
ZUMA SAYS HE NEEDS ‘BLACK’ PARTIES TO UNITE TO CHANGE THE CONSTITUTION TO PERMIT RESTITUTION SANS COMPENSATION
Beneficiaries do not have freehold title and are not free to use the land in the way they see fit — use it as security to leverage operational capital.
As a device for redistributing wealth and achieving equality, land reform has been useless.
It is not true that black people can’t farm commercially, as some idiots would contend, but it is true that no one can farm on a commercially sustainable scale without capital. The government has responded to this by promising emerging farmers that the state will provide the wherewithal, but when they do, it is never enough. And now the money has run out. Thus, the government is setting up land beneficiaries for farming failure.
What Zuma is perpetrating by seeking black support in Parliament is to further racially polarise South African politics. His call is nothing but a ruse to dispossess us all. We would probably be better off by not helping the man. It is the Constitution that is under siege. We must defend it, even if Zuma won’t. ● Blom is a fly-fisherman who likes to write.