Do South Africa’s moral values match our Constitution’s?
THAT THERE IS A BIG GAP between the moral values espoused by the South African constitution and those of the majority of the country’s citizens is not in dispute. What is in dispute is how to close the gap between them. Does this gap mean that the constitution ought to be amended to reflect the views of the majority? Or does it mean that the majority needs to be shepherded along and moved closer to the values of the constitution?
These issues were the subject of a debate held at the University of Pretoria’s Gordon Institute of Business Science (GIBS), where Eusebius McKaiser, an associate at the Centre for the Study of Democracy, and Aubrey Matshiqi, a senior research associate at the Centre for Policy Studies, took the floor in support of the statement that the constitution did not reflect the values of the majority. Nick Ferreira, a legal researcher to Constitutional Court Judge Justice Cameron, and Mazibuko Jara, the chairperson of the Lesbian and Gay Equality Project, defended the constitution.
In his opening statement, McKaiser said it was an empirical truism that the constitutional edifice did not reflect the views of the majority. He cited the hearings by the Home Affairs parliamentary portfolio committee during which it became clear that the majority did not support same sex marriages, for example. Abortion and the spanking of children were two other examples of the gap between the moral values of the constitution and those held by the majority of citizens.
The gap, explained McKaiser, came about because some of the key clauses of the constitution were, contrary to popular belief, not arrived at through a process of consultation with the masses, but rather through discussions by the elites over cups of tea during the writing of the constitution and was agreed to by the African National Congress (ANC) representatives.
“We are on the brink of a constitutional crisis. As soon as service delivery protests are gone and we have more room to talk about things, the majority of South Africans will start expressing their discontent around the gap between the constitution and their views,” he said.
Ferreira argued that it was instructive to look at the current constitution in its historical context. The constitution arose out of a massive and substantive violation of individual and human rights and was therefore a statement by South Africans to say: never again. “We say the constitution fulfils two important functions: it’s a bulwark against the violation of individual rights and it’s a spur to progress. If it is to fulfil these two important functions, the South African constitution cannot be too concerned about representing the moral beliefs of the majority of South African citizens,” Ferreira said.
He added that a constitution with deeply enshrined individual rights, which are significantly at odds with the moral beliefs of the majority of citizens, offered the best protection for individual rights. The content of SA’s Bill of Rights was modelled on the international declaration of human rights, the bare minimum of rights recognised by civilised nations around the world.
Matshiqi said that while he and McKaiser agreed with the current clauses of the constitution, they also believed – and there was ample evidence to support their belief – that the majority of South Africans disagreed. The gap between the constitution and the majority came about because of how majorities are constructed in the country’s discourse. Those who believed that the moral dimensions of our constitution are correct were a numerical minority, but constituted a cultural majority, he said. “So, the effect of what is contained in the constitution is to treat the numerical majority as a cultural minority. It is this gap that we must address,” Matshiqi said, adding that South Africans should be wary of both the tyranny of the minority and the tyranny of the majority.
Responding to Ferreira’s question why the ANC had not amended the constitution to reflect the views of the majority despite its dominance of the legislature, Matshiqi said