Constitution holding steady in the storm
Edwin Cameron explains why the founding document of SA’s democracy has a claim to our fierce commitment
WE are now nearly 20 years into our constitutional democracy. Much has been achieved — perhaps more than those of us who tend to worry realise.
Almost all violent crime is down. Compared with 1994, the murder rate has almost halved. The government’s housing programme has put many millions of South Africans in their own homes. In 1994, just more than half of households had electricity; now 85% do. In 1994, just more than a third of six-year-old children were in school; now 85% are.
The income of the average black family has increased by about a third. And, through the system of social grants totalling about R120-billion every year, the very poorest in our country are afforded some elements of a dignified material existence and access to a measure of social power.
Most importantly, these material gains have been achieved in a functioning democracy.
Our polity is boisterous, rowdy, sometimes cacophonous and often angry. That much is to be expected. But, after nearly two decades, we have more freedom, more debate, more robust and direct engagement with each other — and certainly more practically tangible social justice than 20 years ago.
But all is not well. Many of us are troubled by the state of South Africa. Political debate is sometimes divisive to the point of annihilation. Race rhetoric still sometimes substitutes for performance. Gross inequality, largely racially structured, persists. Public schooling for poor black children seems to be lamentably lacking. In some areas, institutional decay and infrastructural disintegration have reached dismaying proportions.
Last year saw the highest number of service-delivery protests since 2004 — and nearly nine out of 10 (88%) were violent. More and more municipalities and national departments fail to meet basic auditing requirements.
Not unconnected with the accounting chaos, the tide of corruption washes higher and higher. It threatens to engulf us. The shameless looting of our public assets by many politicians and government officials is a direct threat to our democracy and all we hope to achieve in it.
To many, the culture of high-minded civic aspiration that characterised our struggle for racial justice and our transition to democracy seems distinctly frayed, if not in tatters.
In all this, what does it mean that we are a constitutional state? In a time of structural disintegration, social fraying and predatory looting, the constitution is proving a viable framework for the practical play of power needed to vest our future beyond our current problems.
And “framework” is the word we should emphasise. The constitution is not self-executing. In itself, it has no agency. All the constitution does is to create the practical structures that enable the rest of us — that is, you and me, together with principled leadership, a committed government, an active citizenry and vigorous civil-society institutions — to perfect our future.
In saying this, I do not ignore those who are sceptical of constitutionalism. Their views claim respect and consideration.
Constitutional sceptics fall roughly into two opposing categories.
On the one side are those who think that rights and constitutionalism have diverted social power away from “the people”, who should rightly own it. The constitution was a misguided compromise that fettered the people’s power to radically transform our unjust society.
This form of scepticism was most potently expressed by Deputy Minister of Correctional Services Ngoako Ramatlhodi. He said in 2011 that the constitutional transition was a victory for apartheid forces who wanted to retain “white domination under a black government”. This was done “by emptying the legislature and executive of real political power” and giving it to “the judiciary and other constitutional institutions and civil society movements”.
More recently, the general secretary of the National Union of Metalworkers of South Africa, Irvin Jim, has said the clause in the constitution protecting property rights should be “dumped” so that radical change can
It is proving a viable framework for the practical play of power needed to vest our future beyond our current problems
be effected immediately.
Sceptics in this camp say the constitution is too powerful to allow us to do what we must to make our society as it should be.
On the opposing side are those who think, most recently through journalists Ken Owen and RW Johnson after former chief justice Arthur Chaskalson died, that the constitution is not powerful at all. They suggest it is a mere guise under which radicals in the ANC and the SACP have seized for themselves as much power as they want.
The two groups are at opposite poles. The first say the constitution prevents popular power from being exercised. The second say that far from being a brake on the radical exercise of power, the constitution is perhaps a con designed to license it.
To the constitutional sceptics on both sides, I say thank you. Your warnings are important. You alert us to the limitations of rights talk. You are impatient with the clogs and inhibitions that the rule of law places on the exercise of power. And you caution that constitutionalism may prove ineffectual as a bulwark against authoritarianism.
These warnings are well directed. I can only seek to counter this scepticism by arguing that constitutionalism remains the best path we have.
In doing so, I do not call for naive optimism. Rather, I propose a sober assessment of what constitutionalism has yielded in our democracy over the past two decades.
The constitution is not just a document of high aspiration and idealism. It is a practicable, workable charter. And it has proved itself modestly but practically effective as a basis for the democratic exercise of power in our half-broken country.
There are five reasons for my cautiously upbeat assessment.
First, the constitution has not yet stood the test of time. But it is on its way to doing so. We have had nearly two tempestuous decades of disputes, clashes of interests and contests. There have been conflicts between civil society and the state, provinces and the central government, dispossessed land claimants and urban tenants on the one side, and landholders and property owners on the other — these have all been adjudicated within the constitution’s framework of values and the distribution of power it creates. It is quite remarkable that after two decades they are proving resilient and practically effective.
Second, the separation of powers in the constitution has proved practically effective. The legislature, executive and judiciary have settled into a sometimes tense but reasonably effective working relationship.
The courts are cautious when it comes to purely policy decisions — as seen in the reversal of the interdict against e-tolling in advance of sorting out its legality. But they hold the government strictly to account on its social delivery programmes.
Perhaps the best example is the Constitutional Court’s decision, 13 years ago, in the Irene Grootboom case. The court declared the government’s housing programme constitutionally invalid because it failed to make provision for the most desperately poor and vulnerable.
The government said it was doing all it could to build bricks-and-mortar houses for those in the housing queue. The Constitutional Court said this was not enough. The desperate, the unsheltered and those rendered homeless by emergency also had to be provided for.
The result of the decision was a radical overhaul of the government’s entire housing programme. Although still inadequate for the demands of a growing and loudly clamant population, housing delivery has undoubtedly been one of government’s successes. This is the result of the judicially enforceable promise of access to housing in the constitution.
An even more famous instance is the court’s order to the government of Thabo Mbeki, at the height of presidentially sanctioned Aids denialism, to start making antiretroviral drugs available to the poor at public health clinics.
South Africa now administers the biggest publicly provided ARV treat- ment programme in the world. More than two million people living with HIV and Aids, like me, are on lifesaving treatment in our country. That is a proud achievement — and the result of the constitution’s judicially enforceable promise of access to health.
What does this show? That claims that the constitution would protect only privilege have proved unduly pessimistic. The promises in the constitution, enforceable by recourse to the courts of law, have ensured a significant shift in resources, both government and non-government, to the poorest of the poor.
Connected to this is a third reason for cautious optimism: that the notion of constitutionalism is widely disseminated in South Africa.
Perhaps the most remarkable feature of our democracy is the extent to which nearly everyone claims the constitution. Gay and lesbian youngsters from rural areas, service-delivery protesters, opposition parties and political factions in the ANC — all not only accept the legitimacy of the values and rights the constitution sets out, but they claim them for themselves.
Fears that constitutionalism would be elitist, confined to lawyers and armchair idealists, have proved entirely misplaced. Constitutionalism is one of the most powerful motive forces in our politics and national debate.
A fourth reason for cautious optimism is the state of the judiciary. Judges have an unavoidably central
The promises in the constitution have ensured a significant shift in resources to the poorest of the poor
role in sustaining the rule of law. Hence, constitutionalism requires a strong and honest judiciary. That I think we have. As a judge myself, I feel no self-congratulation in noting this. The judiciary is frail and overworked. And the police and courts serve far too many people far too poorly to feel any complacency.
Judges cannot investigate crimes. They cannot produce laboratory results on time. They cannot ensure that criminals are prosecuted competently. Nor can they deliver basic services, or put a stop to corruption.
But neither they nor the constitution prevent any of that from being done. It is not the constitution that prevents efficient police enforcement, detective work, investigative follow-up and prosecution.
As my colleague Deputy Chief Justice Dikgang Moseneke recently noted, neither the constitution nor the courts have prevented an effective programme of land reform and redistribution. The reviled “willing buyer, willing seller” principle that is said to inhibit land reform is contained nowhere in the constitution. All the constitution outlaws are arbitrary deprivations of property, and all it requires is just and equitable compensation when the government takes property. For that, all of us — shack dwellers and homeowners, rich and poor — should be thankful.
Neither the constitution nor judges can create social justice. All they can do when presented with cases is what the constitution tells them to do and what, by their judicial oaths, they have undertaken to do. This is to dispense justice without fear or favour, impartially and staying faithful to the high aspirations of the constitution.
That, I think, is more or less what the judiciary has been doing these past two decades. A functioning, honest and robust judiciary, committed to the values of the constitution, is a significant achievement.
I offer a fifth and final reason for some measure of sober confidence: the fundamental structure and values of the constitution. These are democracy, equality, a separation of power between independent institutions and a commitment to social justice.
The constitution demands concern for the poor and the most vulnerable. It enjoins protection for the weak and for minorities without social or political power. This is right and necessary. Without it, constitutionalism and the rule of law would not be worth their name.
In addition, the constitution requires the progressive realisation of basic social and economic rights. And it builds in protective institutional safeguards to support constitutional democracy through institutions such as the public protector and the South African Human Rights Commission.
But the constitution stops there. Nothing in it prescribes what social remedies a democratically elected government would be free to pursue to create jobs, advance social equity and give historical redress. Our constitution gives a democratically elect-
It exists not only for high dreams and good times. It is there also for the moments of dismay and sobriety
ed ANC government as much power as a democratically elected non-ANC government to advance the common welfare, rectify injustices and create social wealth.
After 19 years, we have much about which we should feel disquiet and dismay. But we also have much about which we can feel at least a small measure of tentative pride.
We have the most active and engaged citizenry on our continent. We have the loudest and most diverse media on our continent. Our national debate about values, means and goals is passionately serious.
We have not stood still since 1994. We have lost our virginal sense of innocence. We have lost our aspirational, wish-list way of planning.
We have become acquainted with the constraints and the evils of power, including the insidious looting of public assets for private gain.
But, after 19 years, we have a battered, partly time-tested, mostly viable and certainly functioning constitutional democracy. We have a viable structure to create the future — and one that affords us a number of viable pathways to reach it.
The constitution exists not only for high dreams and good times. It is there also for the moments of dismay and sobriety. That is not a bad achievement for our first two decades. It is certainly one that has a claim to our fierce commitment.
Cameron is a Constitutional Court justice. This is an edited version of a speech delivered last night at the Sunday Times Literary Awards in Johannesburg