Why we must defend constitutionalism

My journey in the Council for the Advancement of the Constitution (Casac) has been pleasurable, enabling me to be part of an organisation that is bigger than us as individuals.

For a long time I was dismissive of anti-constitutionalists, but it is perhaps time to try to understand what they are saying. They make three main arguments:

First, they argue that the constitution has sanitised property relations of the past instead of uprooting them. They point to section 25, saying it provides for the right to property, disadvantaging the propertyless. There is an easy textual answer: section 25 does not provide for the right to property, despite what many believe.

Those who fell for the idea that it does also look at what the postapartheid settlement has produced: they say it has perpetuated apartheid's property relations. This belief is underpinned by the fact that those most proactive in using the courts to protect property are the ones with the luxury.

I know this because I acted as a land claims court judge in 2014 and 2015. When I began my work there, I thought it was a chance to give black people land. What I found, however, was that 70% of the cases over which I presided were brought by owners seeking to evict people from land. This experience coincided with research by institutions such as Plaas (the Institute of Poverty, Land and Agrarian Studies at the University of the Western Cape) and Stellenbosch University. It showed there were more evictions from land in the first 25 years of freedom than in the entire apartheid period from 1948 to 1991. It is an astonishing figure and made some sense to me because in many court cases it was clear landowners didn’t follow procedure. They would just pack people in the back of a bakkie, drop them on the street or send them to a township. So the idea that the constitution sanitises apartheid property relations coincides with people's experiences.

The second argument raised by critics of the constitution is that it is “anti-poor” and enables an unelected few to run the state's affairs, sometimes contrary to the wishes of the many. They argue that decisions are made by unelected judges, sometimes in conflict with parliament, or by the public protector and, sometimes, the Human Rights Commission. So “people’s power” is constrained. 

There is debate about replacing constitutional supremacy with parliamentary sovereignty. It manifests as a complaint about power; those in the majority in parliament feel they don’t have enough power. Some politicians even say publicly that we should return to parliamentary sovereignty

There is debate about replacing constitutional supremacy with parliamentary sovereignty. It manifests as a complaint about power; those in the majority in parliament feel they don’t have enough power. Some politicians even say publicly that we should return to parliamentary sovereignty. This can also be called the counter-majoritarian dilemma: the majority has decided and therefore it must be the law. 

Argument number three is that the document is Eurocentric, embodying concepts that are unfamiliar to Africans. It was created in the UK, America and Canada, imposed on us and lacks in African values of ubuntu.

When I ask for evidence that it is un-African, critics say it provides for liberal rights and democracy, such as freedom of expression. But when the provisions for socioeconomic rights are highlighted, they argue that these are not sufficient to transform the economy; they don’t go to the heart of black dispossession by Europeans. 

If we are to take seriously this populist attack and not be dismissive, we need to destabilise these arguments rationally through deep research and analysis. One way is to reflect only on historical fact, demonstrating the origins of constitutional thought after the arrival of colonisers and during apartheid and postapartheid. The key thinkers behind constitutional thought were primarily African. It could not be otherwise because constitutional ideas evolved as methods of resistance against colonialism and colonisers were only interested in pillaging and plunder. 

For instance, the main structure of section 25 is based on three provisions. The first is restitution. Few constitutions in the world constitutionalise the right of return, the idea that you are entitled to go back to the place from which you were uprooted. Second is the idea that when property is taken away, you don’t have the right to full market value; it stipulates that compensation is what the state can provide, as long as it is fair, just and equitable. The third is the right to redistribute property. It says anyone who wants land or property but cannot afford it is entitled to it at the state's expense. What a powerful concept, one that is embedded in section 25 of the constitution.

So the argument that it is transformative is destabilising to the constitution's critics. The same with the argument around power. Ask critics, as I have done, whether, as an accused person, they would rather appear in court before a comrade or a judge, ant they all say a judge.

So how can we entrench the notion of constitutionalism? 

We must focus on liberty, equality and transformation, which are at the core of progressive constitutionalism. 

We should start with the judiciary. Having sat on the Judicial Service Commission (JSC), I believe more needs to be done to reform the institution. There are many concerns: the ethical conduct of the judges; quality of adjudication; independence of judges and the institutions that produce them. We have ignored the work of strengthening the judiciary and judges. 

We also need to focus on reforms in the JSC, the body that selects justices. This is vital if we want to create a world-class judiciary. We were world-class during chief justice Arthur Chaskalson's era and have to try to again reach those standards. Most of this work starts at the Constitutional Court. Next year a new chief justice will be appointed. Casac should focus not on who the candidate ought to be, but what qualities we are looking for in such a position.

Last year the JSC sought public participation on how the selection process could be improved. A major debate now is how we as commissioners can question the judicial philosophy of candidates. There is no point telling a candidate: “You are an Indian man.” He knows he is an Indian man; everyone can see that. The question is what is the person's perspective on the rights of minorities? What is their perspective on the rights of women? These are the questions that will deepen constitutionalism. Work to reform the judiciary is a priority, because if we do not create a strong, credible one, we cannot aspire to constitutionalism. 

We must also continue to look at parliament. Electoral reforms have been introduced with the participation of independent candidates. The voice of progressive constitutionalism is sorely needed. We must focus on the outcomes we want: an accountable, accessible and effective parliament that will hold the executive to account. 

Another priority is communal land tenure. Few organisations are concerned about traditional leadership and those who live on traditional land. Casac stood out after taking on the case of rural KZN land dwellers in relation to the Ingonyama Trust.

There are two challenges we face here. One is the increasing concentration of power among traditional authorities, the state and mining companies. We need to build robust and resilient communities that can use legal strategy when necessary. Xolobeni residents resisted on their own before their case went to court. Communities such as these need our support. When minerals and energy minister Gwede Mantashe visits these communities and shouts down everybody in meetings, forcing them to accept deals with, for example, Shell, they may not oppose it outright, but want their interests accommodated. Communities are crying out for legal support. 

Fourth, we need to look at urban land and housing. Land issues are as much urban as rural. Our major spaces are unable to cope with the pressure of urbanisation. What does section 25 mean in the context of urban conglomerations? How do we create an environment in which security of tenure and adequate housing can be made progressively realisable? Though there are many vulnerable urban people with no right of security of tenure, we have never used section 25 in the context of housing.

* Ngcukaitobi is a senior counsel and author. This is an edited extract of a keynote speech he gave to the advisory council of Casac.