Altering section 25 puts cart before the donkey
One of the greatest benefits of an electoral cycle is the newfound sense of urgency it tends to inject into politicians.
As SA meanders towards its sixth democratic general election it was always inevitable that leading political parties would seek to identify causes they could leverage in pursuit of political capital with the electorate.
Consequently, we have seen the EFF identifying the healthcare sector as one of its rallying points in addition to the land question. The DA, on the other hand, has been vocal in its opposition to the runaway increases in fuel prices. As opposition parties, the EFF and the DA are fortunate in that they are free to identify issues that require redress but for which they don’t necessarily have to come up with solutions.
The fuel levy dilemma is a case in point. While the DA is rightly highlighting that a suspension or decrease in the levy would offer welcome relief to consumers, it has not felt a need to explain how the resultant funding gap would then be financed.
The ANC, on the other hand, has the challenge of seeking to find a rallying point while acknowledging that its incumbency puts it at the centre of criticism regarding any issue that gets adopted. This week, in a fashionably late-night address, ANC president Cyril Ramaphosa announced that the party had resolved to support the amendment of the Constitution in an attempt to outline more clearly the conditions under which uncompensated land expropriation can be effected. Naturally, this baffled many observers who had been waiting for the conclusion of the public hearings being conducted by the constitutional review committee on land reform.
The effect of the ANC’s stance is that the Constitution will be amended once the ANC and EFF combine their votes in Parliament. While this confirms a long-suspected and inevitable outcome, it also unfortunately leaves one wondering whether the ANC and its national executive committee could have spared us the cost and effort of the public hearings by simply articulating this stance much earlier, especially since it is a confirmation of the ANC’s Nasrec resolutions.
The fundamental problem with the process adopted by the constitutional review committee is that it is not a referendum and hence the views expressed by the public could always be rejected. For a country in which land hunger is a reality that more acutely affects the majority of the population, there’s no prize for guessing that the overwhelming body of opinion was always going to favour a constitutional amendment. What remains unresolved is the question of what the amendment ought to entail to meet the needs of the country. Ramaphosa’s statement indicates that the ANC’s proposed amendment will outline clearly the conditions under which uncompensated expropriation can be effected. This statement implies an acknowledgment that the Constitution already enables uncompensated expropriation but the clarity on justifiable instances is all that is missing.
While this will find favour with multiple constituents, it should be noted that issues of clarity are not ordinarily inserted into the Constitution. Rather, the various acts and bills that get drafted in support of the Constitution should clarify what ought to be done to achieve outcomes that are in line with the values of the Constitution itself. To that end, if clarity is what we are aiming for, the most practical exercise would be to first identify the enabling instrument that seeks to give life to section 25 — in this case the Expropriation Bill — and then outline what will be changed in the bill to provide the clarity Ramaphosa alluded to. The fact that the bill has been left in limbo since it was jettisoned by former president Jacob Zuma is the great irony of this debate.