Magical thinking is behind the gloom over SA's Constitution

Despite the evidence to the contrary – 20 years of successfully protected freedoms – it has becoming increasingly fashionable to badmouth the South African Constitution. Sceptics range across the political spectrum, from radicals, who want the state to be unconstrained, to liberals who claim that the Constitution has effectively already been negated by the state.

The radical position is simple. The people elect government and its ability to act to the benefit of the majority should not be limited by a document that was cobbled together to protect bourgeoisie minority interests.

The riposte is equally simple. The historical evidence is unchallengeable that although governments unfettered by constitutions might start off being punitive “only” towards popular targets, the so-called undeserving, they eventually devour all before them.

In fact, it’s drolly amusing how many on the left suddenly became vociferous supporters of constitutional safeguards to a free media at the very moment that the African National Congress started denying them coverage on state television and radio. Similarly, the Bill of Rights’ protections of individual liberties came into favour the moment that governing clique started to abuse intelligence and security structures to spy on and harass their own ANC comrades.

Liberal disenchantment is more complicated. While they squawk loudly at any move to amend the Constitution, many liberals at the same time claim our constitutional safeguards to be worthless, citing a dilution of the Constitutional Court through political appointments and a growing tendency of government simply to ignore the Constitution.

Writing in Business Day this week the liberal commentator Gareth van Onselen is wonderfully scathing about President Jacob Zuma’s use of superstition to electoral advantage. He then argues that this reality of tradition and superstition is a challenge “to the democrats, who pretend they live in a modern democracy” and that “this, of course, is a conversation the patriotic and professorial alike do not wish to have. It’s embarrassing to those so invested in the Bill of Human Rights and the glorious thing that is our Constitution”.

It’s an excessively gloomy view. SA is a complicated amalgam of the modern and the traditional, so it is not surprising that constitutionality on occasion hits some very hard buffers. So what? It would be magical thinking of the kind that Van Onselen rightly derides, to expect otherwise.

All that a constitution anywhere in the world can do is to provide a framework within which to negotiate a way around those buffers. In fact, the most important component to a constitutional state is arguably not the detailed legal exposition of rights and obligations, but the desire of a people to seek legal solutions within a set of agreed principles, rather than through violence and coercion.

The importance of such a desire, let’s call it national sentiment, can be seen, paradoxically, in the recent easy perversion of constitutional safeguards all over Africa. Malawi and Kenya both have shiny new constitutions cut from a liberal template, yet condone anti-gay administrative measures. Uganda, too, has anti-gay laws and Nigeria – despite a model Constitution filled with ringing guarantees of freedom of thought, expression, association, personal liberty and respect for the individual – has just passed swingeing anti-gay legislation.

The enabling factor to homophobia in all those countries is the strength of tradition and a willingness by government to pander to populist sentiment.

SA shares this social conservatism, which is reflected in the shameful failure of its government to condemn the continent-wide hysteria about gays. Yet while gays do suffer discrimination and violence, as evidenced in the shocking statistics for “corrective rape” of lesbian women, the state does not tacitly condone these actions.

Also, unlike elsewhere in Africa, farms have not been unilaterally seized. Nor has government amended the Constitution to meet the popular appetite for the death penalty. The ANC government is not pandering to populism, at least not yet.

The difference perhaps lies in the strength of national sentiment on the issue of constitutionalism. The majority of South Africans, no matter what their specific reservations about gays, white land ownership or the lack of a death penalty, support the Constitution and are attuned to the advantages of the Bill of Rights.

Despite 20 tumultuous years, that’s a reality and we can thank a vibrant civil society for it. And, of course, the robustness of the Constitution itself.

— Follow WSM on Twitter @TheJaundicedEye