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Reckless amendments to constituti­on will be illegal


CALLS to chop and change our constituti­on amount to little more than political knee-jerks. If those calls are effected, they will be contrary to the rule of law and therefore void. South Africans should respect the constituti­on as an inflexible statute meant to endure for generation­s.

Section 1, the “founding provisions”, can, in a way, be described as the “constituti­on of the constituti­on”. It provides the basis for the rest of the constituti­on and can only be amended with an historical­ly-elusive, two-thirds majority in Parliament.

Its provisions stipulate that South Africa is democratic, that our society must be non-racial and non-sexist, and the constituti­on, as well as the rule of law, is the supreme law of the land. And it is these provisions, among others, that inform the remainder of it.

The Bill of Rights, which comes immediatel­y after the founding provisions in the constituti­on, is the most substantiv­e brake on government power and seems to be given more prominence by South African civil society. It is unjustifia­ble for the founding provisions to continue to be as underempha­sised and underappre­ciated as they have been up to now.

We have allowed strikingly obvious violations of our founding provisions to occur, not only by the executive government, but Parliament and, on occasion, the courts.

The most-often violated and most-misunderst­ood founding provision is the supremacy of the rule of law. We, rightly, acknowledg­e the constituti­on as the supreme law, yet the constituti­on itself provides that the rule of law is co-equally supreme. The rule of law, furthermor­e, is a well-understood principle that dictates reasonable (and reasoned) governance as well as the protection of human rights.

Each new piece of legislatio­n that assigns more generous discretion­ary powers to regulators, tosses the rule of law further aside. So overlooked are the founding provisions that, in recent months, there have been some absurd and dangerous calls for changes that fall foul of what the founding provisions envisage for our society.

Jimmy Manyi of the Progressiv­e Profession­als Forum, and Meokgo Matuda of the ANC Women’s League, have called for a return to parliament­ary sovereignt­y, where the whim of Parliament, not a constituti­onal instrument, is the supreme law.

The public protector has recommende­d that the constituti­on be amended to remove the SA Reserve Bank’s mandate to protect the value of the currency.

And various politician­s and associatio­ns have called for section 25 of the constituti­on, the provision that protects the private property of all South Africans from arbitrary deprivatio­n, to be repealed.

All of these calls are reckless, short-term political thinking devoid of basis in the spirit of our founding provisions.

Constituti­onalism and the rule of law require long-term thinking, which recognises the government of today is not the government of tomorrow, and the outrage currently dominating public opinion will not always be around.

According to professor of jurisprude­nce and law at Cambridge University, Trevor Allan, even when the rule of law is not written into a constituti­on, it is still part and parcel of any common law legal order and carries the same effective weight as if it were written down. In other words: try as one may, one cannot get around the rule of law.

The late Constituti­onal Court judge, Tholakele Madala, echoed this in the South African context, saying “the rule of law is a fundamenta­l postulate of our constituti­onal structure. This is not only explicitly stated in section 1 of the constituti­on but it permeates the entire constituti­on.”

He went on to describe some features of the rule of law, including an aversion to arbitrarin­ess, equality before the law, and recognitio­n of basic human rights.

If the rule of law “permeates” the constituti­on, it follows that an arbitrary, unreasonab­le, and human rights-violating amendment would fall foul of the rule of law, and, thus, be unconstitu­tional.

Whether the courts agree with this is a separate and unrelated question.

Any constituti­on is meant for the ages. The constituti­on of the US – a standard-setter for constituti­onalism – has endured for 230 years and been amended only 27 times. South Africa’s constituti­on has been amended 17 times in 23 years, with most amendments being technical or procedural. Substantiv­e amendments appear to be on the horizon, however.

If our constituti­on should lose its basic character as a shield for the South African people against undue government overreach within the period of only one political party’s rule, there can be no doubt that tyranny is the rule and freedom has again slipped through our grasp.

Martin van Staden is legal researcher at the Free Market Foundation and academic programmes director of Students For Liberty in Southern Africa. The views expressed in the article are the author’s and are not necessaril­y shared by the Free Market Foundation. www. martinvans­taden.com

 ??  ?? The Constituti­onal Court sign in our 11 official languages. Changing the constituti­on could be disastrous for the country.
The Constituti­onal Court sign in our 11 official languages. Changing the constituti­on could be disastrous for the country.

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