A Republic We Should Keep

The Flame of Democracy at Constitution Hill in Johannesburg was lit by Nelson Mandela at his home in Qunu on 10 December 2011 to mark the 25th anniversary of the signing of the Constitution of South Africa, 1996. The perpetual flame serves to remind South Africans of their right to live free from injustice and oppression.

In the 25 years since the South African Constitution was signed into law, what progress have we made — and what will it take to attain the constitutional vision of a free, equal and dignified life for all?

When one thinks of possible threats to constitutional democracy, what immediately comes to mind is the spectre of a dictator-president who overstays his welcome, a government that ignores court orders, the suppression of rights to free expression, and the wanton arbitrary detention of dissenting voices.

These are of course serious and, unfortunately, all too plausible threats to any constitutional order. But there exist other phenomena that pose similar if not greater threats from within the order itself.

Today marks 25 years since the Constitution of the Republic of South Africa was signed into law by former President Nelson Mandela on 10 December 1996. This 25th anniversary of our Constitution should be cause for celebration. Yet it feels almost vulgar to celebrate what is by any measure a triumph, at a time when the material conditions of South Africans do not bear out this story of overcoming centuries of racist and sexist oppression.

Today, around 34.9% of working-age South Africans are unemployed. Those who are employed earn below the rate of consumer price inflation. The COVID-19 pandemic has exposed the gross inequalities that bedevil our society and how inadequate our social security infrastructure is. It has also revealed the ugliest of human vices: the rampant corruption and looting of state resources through unscrupulous public procurement practices at a time when our people are most in need.

During what was surely our Winter of Discontent in July, violent riots erupted followed by looting in parts of the country following the incarceration of former President Zuma for contempt of court. President Ramaphosa called it an “attempted insurrection”, an “orchestrated campaign of public violence” and an “assault on our constitutional democracy.”

That may be so. But in the pictures broadcast on national media, we saw children carrying pairs of shoes, shorts and t-shirts, and the elderly walking away with only the bare necessities, maize meal and cooking oil. We saw people whose discontent over their dire material conditions was exploited and used to cast maledictions on the very foundations of this Republic, not mere criminal elements.

More concerning was the apparent failure of state authorities both to anticipate and to apprehend the situation as it worsened. Can the South African state withstand a stronger or more coordinated attack?

On the other hand, testimony at the Zondo commission has unravelled networks of patronage and greed and the systematic hollowing out of important state institutions. The decay of law enforcement agencies, state-owned enterprises, and even independent organs of state has rendered the state incapable of arresting the gradual decline of democratic governance.

All this calls to mind a question that I think should inform our appraisal of the last 25 years of constitutional democracy in South Africa: what are constitutions for?

“The Constitution is not self-executing … It provides us with a normative framework within which to pursue the achievement of human dignity, equality, and freedom and to undo the wrongs of the past with a view to securing a better future.”

It is the fashionable thing to attack the Constitution as nothing more than an instrument that preserves the pre-1994 status quo and that does nothing to cure the ills wrought by years of colonialism and apartheid. Such a view absolves successive democratic governments of responsibility for their failures to take tangible and meaningful measures to remedy apartheid’s legacies.

This is because the Constitution is not self-executing, nor does it purport to be. It provides us with a normative framework within which to pursue the achievement of human dignity, equality, and freedom and to undo the wrongs of the past with a view to securing a better future. It recognises this latter goal explicitly by vesting in the state wide legislative and policy powers to take positive measures to achieve equality. Blame for our snail’s pace of progress rests with the elected representatives.

The Constitution relies on the election of virtuous South Africans who are committed to the aspirations of our forebears as encapsulated in it. It requires an unfailing pursuit of the common good and eschews rugged self-interest while at the same time allowing us individuals the space to order our lives how we see fit. It concretises our claims to the basic material conditions that are conducive to a life of dignity, equality, and freedom: education, housing, healthcare, water, food and social security, a healthy environment and access to courts.

It is the courts that have in many cases made these aspirations real, upholding socioeconomic rights claims, often in the face of vicious attacks from politicians. It is the courts that were the last bulwark against state capture in the not-so-distant past and it is them who now face accusations of dictatorship and overreach in the discharge of their constitutional function.

It is important that we be vigilant of the use of legitimate constitutional processes for partisan ends. The conduct of the Judicial Service Commission is of particular concern. Entrusted with the responsibility to appoint judges, it has performed less than admirably in carrying out this role and most recently had to rerun interviews for vacancies at the Constitutional Court – under pain of a court order – after a shocking dereliction of duty.

It is these internal threats which should concern us. For theirs is not to destroy in one fell swoop but to nibble and nibble until the thing collapses in on itself.

Our constitutional order depends, for its survival, on the buy-in of the people it governs. Exalting the high-minded values that underlie our foundational text without them being reflected in the lives of ordinary people is a sure enough path to failure. Once the people lose trust in institutions of democracy, they lose their legitimacy and are as good as defunct. A decent society by name only is no decent society at all.

The Republic envisaged by the Constitution is only attainable if the persons and institutions it entrusts with public power work to attain it and to keep it once they have it. What does it take to keep the Republic of South Africa? More than just lip service to the demands of the Constitution upon which it is founded.

Here’s to 25 more years — may they more fully realise our constitutional aspirations for a free, equal and dignified life for all South Africans.