A few days ago, a radio host expressed criticism of the constitution on her show. She implied that despite being a world-class constitution, it hasn't improved the life prospects of the poor and disenfranchised. Her views are widely held in South Africa.
There is a belief that the constitution can be perceived as a failure because it has not led to the eradication of poverty. This view has been slowly gaining traction over the past few years as the deadly cocktail of unemployment, poverty and inequality continues to stoke social discord.
The view is not wrong — there is a problem. Which raises the question: what is the problem? The constitution is not the problem, its implementation is. The anti-constitutional narrative is flawed by its own logic.
The constitution is seen as one of the best in the world, mostly because the state is obliged to ensure the socioeconomic rights of the people of South Africa. Fee-free basic education, clinics and hospitals where one does not pay to access health care, a social grant system specifically designed for poverty alleviation ... these services were not gifted to us by the ANC government.
The constitution is not the problem, its implementation is.
These services were baked into the constitution. Implying that the constitution is only celebrated because it does not benefit poor people is not just factually incorrect but shows a fundamental lack of engagement with the very document they are critical of.
If the constitution is one of the best, it stands to reason that it might not be the reason for the country’s current malaise. Some might argue that the lived experience of South Africans trumps any journal article written by an academic, and that the true value of the constitution is measured by how much progress has been made in the lives of disadvantaged folks. That places the blame at the wrong door, mainly because it does not hold the true beneficiaries of the anti-constitutional rhetoric accountable. Those people are elected politicians who have failed to make all of the ideals of the constitution a reality.
The constitution is a great document, but it is just that — a document. At best, it is an aspirational document that sets out aspects of governance that must occur, such as socioeconomic rights. At worst, it is a scapegoat for the government’s failings, and a convenient target for politicians to point to when asked to take responsibility for their ineptitude as elected officials.
Which section in the constitution prohibits the government from eradicating poverty? Or from creating job opportunities for young people? Or from creating an equitable society? Or from ending crime? These ought to be questions that people like the radio show host should seriously consider. The questions are worth engaging, because many people, even the so-called “constitutional triumphalists”, do want to see a just and equitable country, where poverty is a thing of the past.
If the constitution stands in the way of the progress that we seek, then it is not a constitution worth having. But we first need to actually prove that the constitution — and not elected officials who are either incompetent or uninterested in governance — is the real problem. The view I hold is that the constitution, while pivotal to our country’s trajectory, has only limited power.
Constitutions do not implement themselves, elected officials do. That does not mean that the constitution is an infallible document that ought to be read with reverence. It means that before looking to the constitution we must look to what policies are in place, and whether those policies are being implemented correctly or not.
This might sound trite, but governance matters. Public policy matters. These aspects are often overlooked, because they are not “sexy” or “dramatic” in a way that commands public attention as does a party calling for land expropriation without compensation.
The latter is captivating to the public eye, and easily packaged into a news headline. Whether you agree with the view or not, you’ll know that the view exists. It’s much harder to ask why the department of water & sanitation failed to prevent a cholera outbreak in Hammanskraal. It’s much harder to ask why one woman was minister of basic education for more than a decade when a majority of grade 4 students couldn’t read for meaning and a child fell to his death in a pit latrine during her tenure.
Which section in the constitution prohibits the government from eradicating poverty, creating job opportunities, creating an equitable society, ending crime?
It’s much harder to hold the department of home affairs accountable for limiting immigrant access to the country while conveniently not mentioning the visa backlog across department offices. From those three cases alone, there are multiple governance and policy failures that can easily be interrogated, no constitution needed.
But the fervour surrounding these issues is short-lived, even though solving such issues may actually lead to longer-lasting, more immediately impactful change than a constitutional amendment. So while it is undeniably true that the post-apartheid social order has not been as beneficial for all black people as it should have, the culprit is not the constitution. It is the people whose duty it is to make the constitution’s values a lived reality for us all.
They have failed us at the most basic of levels, and it is them who should be standing in the metaphorical dock instead of a document that is at least partially responsible for the good that we see in the country.
That’s why, before public figures lambast the constitution, they should begin by asking a more pertinent question: is the constitution being implemented in a way that is in line with its founding provisions?
• Zondi is a writer and analyst
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