When it comes to the land issue, President Cyril Ramaphosa has promised us: everything will be alright in the end. So, if things are not alright, then it’s not the end.
And as the process to review the property clause of the constitution hurtles towards a messy and fractious finish this week, it has become very clear that this is not the end.
After only three days of deliberation, parliament’s constitutional review committee will vote on Thursday and the ANC will drive home its majority position to recommend that the constitution be amended to make explicit expropriation of land without compensation. This decision was already made back on July 31 when Ramaphosa made his late-night address to the nation, to tell South Africans of the ANC’s decision taken by its national executive committee.
In the committee there will be no room for consensus building or compromise. The division is already drawn on racial lines. Although the DA, COPE and the African Christian Democratic Party (ACDP) would all contest the definition of being “white parties” they are definitely not “black parties”, which the ANC and EFF are. In the bigger picture, there is no avoiding that this is a black-white issue and that it has been racially polarising for parliament and for the country as a whole.
The only debate this week will be the extent to which the ANC and EFF stand together or part ways on the final committee resolution. It is clear by now that what the ANC favours is a “clarificatory” amendment to the constitution which will do little more than “make explicit what is implicit” in the constitution, which is to articulate that just and equitable compensation can be zero. The EFF wants a much bigger amendment of the constitution, which would include its vision that all land is nationalised and owned by the state.
Should the EFF try to insist that the committee recommendation include this as well, the ANC is likely to simply outvote it. All that is needed for the report to pass through this committee is a simple majority. The ANC wants the report finalised by the end of this week in time for it to be tabled in the National Assembly by the end of November. That means by the time parliament rises in the first week of December for recess, it will have a standing resolution to amend the constitution.
That will bring to an end part one of the parliamentary process. Part two will begin later when the National Assembly and the National Council of Provinces set up committees to draft the actual amendment. This part is not likely to start before the term of the next parliament. There is not enough time between January 2019 and the election, before which parliament must be dissolved, to process the amendment. As parliament cannot carry work over into the next term, there is little point in starting the process now.
What this means is that the EFF is not likely to achieve its prime objective: to force the ANC to amend the constitution before the election. Nevertheless, it will still have forced the ANC to promise to do so; without doubt the biggest achievement of any opposition party yet.
The bigger fight between the two will be delayed until after the election when the content of the amendment is fought over and must be passed with a two-thirds majority through parliament.
The ANC also hopes to use the land issue to its advantage when campaigning. It can promise voters that it promises to amend the constitution and that it has a parliamentary resolution to prove it.
The party also hopes to send a second signal of its sincerity by reintroducing a reworked expropriation bill before the parliamentary term ends. It is in this piece of legislation that the circumstances will be set out under which expropriation without compensation can carried out. These will include: land where an owner has abandoned his ownership rights and responsibilities; land held for speculation; land in which the state’s own investment in the property cancels out the payment of compensation; and land where the history of its acquisition can show political dispossession.
This bill is also not going to make it back to parliament in time for processing, but the ANC hopes, as a start, that it will be published for public comment, so that work can begin on it in the new term.
In contrast to the public hearings, where the majority of participants were overwhelmingly in favour of amending the constitution, the majority of the written submissions were not.
Unfortunately, for the ANC, which wants all of this to run smoothly, part one of the parliamentary process has been left littered with mistakes due to its own neglect and ineptitude. Meetings of the committee are chaotic, with constant confusion over the venue of the meeting on the agenda and exhortations to the chair to follow procedure and provide direction.
Opposition parties are adamant that the ANC’s decision to rush into deliberations this week without a proper consideration of the written submissions on the amendment of the property clause will cost it in court.
About 600,000 written submissions were received by the committee. In contrast to the public hearings, where the majority of participants were overwhelmingly in favour of amending the constitution, the majority of the written submissions were not. Parliament employed an external company to process the written submissions and compile a report.
Multiple submissions from the same e-mail address were disqualified. Among these — it appears but is not completely clear — are about 60,000 submissions collected by the Institute of Race Relations, which called for submissions to be made directly to it.
When the company reported to the committee, all parties rounded upon the presenters and rejected what they presented, arguing that they had not done a good enough job. It was then decided that parliament would compile its own report on the written submissions. Since this decision was taken, the committee has been at odds over what was decided.
The ANC and EFF say that it was only the presentation and not the report in its entirety that was rejected. The rest of the opposition say the report was rejected. Hence they argue that no report has yet been made on the written submissions. It follows that despite its constitutional responsibility to do so, parliament has not considered the views of the public.
The DA, COPE and the ACDP are adamant that the constitutional amendment will certainly be taken on review, although probably not by themselves but by other more hardline lobby groups.
That will snarl up the whole process possibly for years, which underlines the importance for the ANC of getting the expropriation bill on track as the short-term political signal to voters. Of course, the long-term solution is not land expropriation without compensation at all, but strong and effective institutions able to bring about faster land reform and policies which make it viable. There are few prospects of that in the offing.
We are a long way away from reaching the end.
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