So let's rewrite the Constitution

According to Thomas Jefferson, we have four years to go. He wrote to James Madison in 1789: “Every constitution then, and every law, naturally expires at the end of 19 years.” He had some funny ideas; let’s leave it at that.

Constitution writing has improved since the days of America’s “founding fathers”, the process described in a delightful book Me the People by Kevin Bleyer (a writer for The Daily Show with Jon Stewart) thus: “a four-page document written by farmers, scrawled on animal skin, disseminated more than two centuries ago, conceived in desperation in the aftermath of war, composed in language of the country it was intended to spurn, and, not for nothing, scribbled by hand with the quill of a goose”.

From McCarthyism to Guantanamo Bay, the Constitution of America is not exactly the envy of the world anymore. Earlier this year, US Supreme Court Justice Ruth Bader Ginsburg told the Egyptians, “I would not look to the US Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa.”

In the same interview she also said, “If the people don’t care, then the best Constitution in the world won’t make any difference. So the spirit of liberty has to be in the population, and then the Constitution. First, it should safeguard basic fundamental human rights, like our First Amendment, the right to speak freely, and to publish freely, without the government as a censor.”

Are South Africans fired up by the spirit of liberty? I believe they are, and they take their freedoms very seriously.

The problem has been that those best placed to make it a living document, to propagate the Constitution, have not done a very good job.

The reason for this is that when the Constitution came into effect on February 4 1997, it was seen as the culmination of what we the people had fought for all those years to attain; no need then to popularise it. That was a mistake.

The Constitution, it seems, is widely misunderstood by the populace. It hasn’t exactly made it on to CNA’s bestseller list. And the lack of enthusiasm by judges to join the bench of the Constitutional Court should be a trigger for national concern.

The most voluble critics of the Constitution are duped by that deadly combination of scapegoating and conspiracy theories. The Constitution is utterly blameless for the lack of progress in economic transformation and land restitution, and it is untrue that the Constitution represents some kind of ideological imposition from outside the country.

Instead, it is an autochthonous document, painstakingly negotiated with public participation over many years. It is a model of consensus compared to the Freedom Charter (remarkable as that document is), where a handful of individuals sorted through hundreds of scraps of paper stored in an old cabin trunk, random ideas sent in by those who had heard about the Congress, before leaving Rusty Bernstein alone late one night to produce a draft .

A recent survey seems to indicate that the uninformed or the paranoid arraigned against the Constitution are gaining ground.

There are lots of proposals for rewrites. With its trademark faulty logic, the National Union of Metalworkers appears bizarrely to think the Constitution was some kind of “compromise” and labels those defending their constitutional rights racists. The ANC Youth League wants Section 25 scrapped to allow, it says, farm expropriation without any compensation, even though former chief justice Arthur Chaskalson keeps pointing out that the willing-buyer willing-seller policy the government adopted is not a constitutional requirement.

Some Christians want to bring back blasphemy laws, outlaw abortion and regain the right to beat their children. Opposition parties have been known to want the death penalty back. Traditional African leaders want homosexuals thrown in jail, let alone be allowed to marry. Certain individuals in the ANC want the special freedom accorded artistic expression curbed. Slumlords would like the right to raise rents arbitrarily and to summarily turf out tenants. And then there is the security establishment which wants more secrecy and less restrictions, and the ruling party that seems hell-bent on intimidating and bullying the media and the judiciary whenever these disagree with it.

So, who exactly would rewrite the Constitution? Where and how would this be accomplished? In Mangaung? In Luthuli House?

Some people have suggested a national referendum.

Reassuringly, it is the SA Communist Party that leaps to the defence of the Constitution most often and says the kind of things you’d prefer to hear from the ANC. The SACP’s message to the ANC on its centenary included the following: “One of the tasks of the alliance in our current reality is to actively espouse the Constitution and advance it for what it is – a clarion call for on-going radical transformation in the finest traditions of the ANC’s longstanding and principled struggle.”

Jeremy Cronin wrote (a couple of years ago): “In power, however, bureaucratic authoritarianism often swallowed up the revolutionary and democratic impulses (and even cadres) of an earlier period. That is why it is so important that the left, especially the communist left, should be in the forefront of defending a strong constitution that safeguards individual and collective rights, and that entrenches effective checks and balances on the state.”

Our Constitution has been amended 16 times, and most of this tinkering has been deleterious. Amendments to allow provincial and municipal boundary changes were met and continue to be met by rioting and grassroots outrage.

The 8th, 9th and 10th amendments allowed for floor-crossing by politicians, and what a low point in our democracy that proved to be. These amendments then had to be repealed by the 14th and 15th amendment.

Minister of Justice Jeff Radebe (who happens to also be head of policy) said when the other 16 amendments were done no voices were raised. This is a blatantly false statement. He also described resistance to constitutional change as scare tactics by the media.

The biggest threat to the Constitution, besides stupidity, remains a political party slipping in popularity in the face of the country’s failure to sufficiently improve the lives of the poor. I write the country, for it is not government alone, but the private sector and all of us too.

When Cyril Ramaphosa presented the final text of the Constitution to then-president Mandela, it was a time when the ANC was still in its salad days; idealistic and confident in is ability to set an example for Africa and the world. Some in the ANC already had a premonition of the forces that would test that idealism once in power. That is why we have a Bill of Rights and a 75% safeguard. As Mandela said, “Never, never, and never again.”

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