The Constitutional Assembly, democratically elected in 1994, adopted our national constitution on May 8 1996. Accordingly, together as liberated SA we must join hands to celebrate the 25th anniversary of a truly historic document.
During that famous session when the constitution was formally adopted, then president Nelson Mandela made these defining observations: “The brief seconds when the majority of honourable members quietly assented to the new basic law of the land have captured, in a fleeting moment, the centuries of history that the SA people have endured in search of a better future … And so it has come to pass that SA today undergoes her rebirth, cleansed of a horrible past, matured from a tentative beginning and reaching out to the future with confidence.”
Just over 50 years earlier, in 1944, Mandela had been party to the drafting and adoption of the manifesto of the ANC Youth League which said: “… Africans reject the theory that because he is non-white and because he is a conquered race, he must be exterminated. He demands the right to be a free citizen in the SA democracy; the right to an unhampered pursuit of his national destiny and the freedom to make his legitimate contribution to human advancement …”
Therefore, in 1996 when our country reached out to the future with confidence, it was fulfilling the wish of the youth of 1944 to have the right to an unhampered pursuit of their national destiny and the freedom to make their legitimate contribution to human advancement.
Regrettably, today as we discuss the specific matters of constitutional democracy and local government, some claiming to belong to the very same ANC that was the principal author of this 1996 constitution have recently sought to challenge precisely these pillars of the constitution, among others.
Some of these have made bold to assert that the country is in crisis because the ANC has come to represent “neocolonialism and neoliberalism”. They argue that the policy and practice of the supremacy of the constitution and constitutional democracy in our country is exactly an expression of that neocolonialism and neoliberalism!
They set in opposition to each other the elected parliament on one side and the constitution, and therefore the Constitutional Court, on the other. They argue that the people give sovereign power to the elected legislature and that giving power to the Constitutional Court to review decisions of the legislature illegitimately subverts the will of the people.
This is extended to the whole judicial system, to the extent that the courts have the power to adjudicate even decisions of individual political parties, including the ANC as the governing party.
A specific proposal from some of these naysayers argues for a judicial system made up of magistrate’s courts, high courts, an appeal court and a “review court”. It does not say what the mandate of such a review court would be. The important point, however, is that this suggestion means the abolition of the Constitutional Court.
In reality, what is suggested here is the abandonment of the principle that the constitution is the supreme law of the republic, thus the restoration of the unfettered authority of parliament and therefore the complete freedom of any elected majority party to set such governance rules as it wishes. These proposals seek to overturn very important and defining decisions taken by the Constitutional Assembly elected in 1994.
The ANC seriously considered the matter of the tension that would arise between an elected legislature and an appointed Constitutional Court and deliberately opted for a constitutional democracy. This was the position consciously adopted by the Constitutional Assembly.
To repeat, the ANC said: “The supremacy of the constitution should not be a system against the state, but it should be a system for the democratic state, to guard against the state degenerating into anarchy, arbitrariness and illegality, without a framework of rules. Such a state would undermine democracy and democratic practices.”
The decision to have a constitutional democracy was exactly because the ANC and the rest of the Constitutional Assembly deliberately thought it would be best that the elected legislature operated within a “framework of rules”. The naysayers seek to remove that framework.
Of course, the Constitutional Assembly had the sovereign authority these naysayers speak of. It used that authority to agree on a constitution that prescribed the “framework of rules” within which it, as the legislature, would operate. It and the successive legislatures have operated within that framework for more than two decades, with no negative effect on our country’s democratic system.
The naysayers have also supported the suggestion for what is called the “synchronisation of the national, provincial and local government elections”. In this regard they join the ANC itself, which is mimicking a call made elsewhere.
After a June 2020 meeting of its national executive committee (NEC), the ANC issued a statement that said, among others: “The NEC supports the initiative by officials and the [national working committee] to engage in the development of proposals on a synchronised national, provincial and local government elections to enable better co-ordination and implementation of policies across spheres of government.”
The ANC gave local government a particular place within our system of government. One of the important particularities in this regard is that it is especially in this sphere of government that the ANC saw the fullest expression of the objective stated in the Freedom Charter: “The people shall govern!”
It is obvious that any “synchronisation” of the local government elections, especially national elections, would drown out the former. This would finally collapse the excellent and special vision for local government the ANC had, and which in large measure the Constitutional Assembly accepted. We can therefore understand why the naysayers would support the suggested “synchronisation” of the elections. It is a reactionary proposal!
The argument that a constitutional democracy is a threat to democracy itself and a subversion of the will of the people makes no sense and is not supported by any evidence, either in our country or elsewhere in the world. It is not advanced because of a love for democracy and respect for the will of the people. It is in fact part of a counter-revolutionary offensive that aims to overthrow the ANC as a governing party and install another power in its place that would proceed to manage our country as it wishes, without the “framework of rules” provided by our constitution.
Indeed, some of the naysayers we have cited have not hidden their intentions. In this context they have spoken of such measures as forming a “task team” to run the ANC and replace the current ANC NEC, “rebuilding the [ANC] security structures”, “rescheduling” the local government elections, “ensuring that parliament reasserts its sovereignty”, expelling all “foreign nationals” within 90 days, and so on.
It is also important to note that such demands are not restricted in part or in whole to the naysayers we have cited, but also to other people and formations in our country, which therefore share counter-revolutionary objectives.
From its earliest beginnings in the 19th century, our country’s liberation movement had as one of its central tasks to ensure that our country has a framework, binding on all, to establish a social order and governance system that would grant equal rights to all South Africans, black and white.
This meant that by whatever means necessary and possible, the settler colonialists and the indigenous majority — the oppressor and the oppressed, black and white — had to reach a moment when they could sit together and agree on this framework to establish a social order and governance system that would grant equal rights to all South Africans.
The oppressed through their liberation movement always entertained the hope that a peaceful way would be found to arrive at this historic moment. However, the oppressor always thought it would have sufficient brute strength to defeat and suppress the liberation movement. In the end, the multifaceted and protracted liberation struggle and changing balance of forces, principally in our region and the rest of Africa, left the apartheid regime with no choice but to enter into negotiations to end the many centuries of white minority colonial and apartheid domination.
The constitution, whose 25th anniversary we celebrate this year, is one of the outstanding victories of the multifaceted and protracted liberation struggle we have mentioned. It is in itself a monumental tribute to the masses of our people who not only carried our country to its freedom but also provided the constitutional framework on whose basis we should achieve the reconstruction and development of our country, giving birth to a new SA that truly belongs to all who live in it, black and white, united in their diversity.
We must never allow anything to diminish the importance and unquestioned excellence of such a noble product of the immense sacrifices made by millions of our people as the living constitution of the republic. Of that constitution this we can say Vox populi, vox dei! (The voice of the people is the voice of God).
• Mbeki was the second president of a democratic SA. The full version of this article is available on the Thabo Mbeki Foundation website.
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