Do South Africa’s moral val­ues match our Con­sti­tu­tion’s?

Finweek English Edition - - Unittrusts -

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

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