Vol 1: Issue 26
31 March 2023
OVERHAUL THE WHITE MINORITY RIGHTS CONSTITUTION
It is now the 26th year since the Constitution of the Republic of South Africa Act 200 of 1996 was signed into law by former President Nelson Mandela. It came into operation on 4 February 1997. As the country approaches the Constitution’s 30th anniversary, the government and the media are organising various platforms for reflection.
Unfortunately, but as expected, the format of these reflections excludes the masses in the villages, townships and shacks. It seems a few Black elites, such as academics and political analysts, are invited to sing praises for this little piece of document as “the best Constitution in the world”. Yet there is nothing “best in the world” in the living conditions of Black people. This “best in the world” receives little or no contextualisation from the “fellow travelers”. At the recent ENCA’s “We The Nation” program in which I participated, one academic revealed to me that I had an advantage that they didn’t have as scholars, which is that they have to “sound scholarly and responsible”. I still don’t know what that means.
I will briefly explain hereunder that the 1996 Constitution was drafted under circumstances that favoured the white minority, and against the Black majority. It was drafted under the treacherous atmosphere of secret deals and compromise. Tragically, it was drafted under the imposed constraints that it could not shake off the limiting and straightjacketing 34 Constitutional Principles passed by the white settler-colonial Parliament as the cornerstone of the 1993 Interim Constitution, which was also proudly passed by the same apartheid Parliament.
The same praise singers are uncritically excited by terms like “Constitutional Democracy”, “Supreme Law” and “Bill of Rights” without critically evaluating the context in which those principles would find application. In themselves, those terms mean nothing. Of course, the 1996 Constitution enjoys the power of being the Supreme Law in this democratic dispensation. Do you think the apartheid regime, which was pulling the strings during the negotiations, would have allowed this Constitution to be the Supreme Law if it did not favour them and guarantee white minority rights”? Carried over from the 34 Constitutional Principles, the Constitutional Court does little beyond playing a “mantshingilane” role to check that nothing comes into law and implementation if it interferes with the white minority rights guarantees traded during the negotiations. That is what a Constitutional Democracy means within this product of a negotiated settlement. Apart from it being corrupt and devoid of liberatory policies, we should now understand why the government is found wanting when it has to pass a few legislations in favour of Black people.
Nothing makes the Black elites hilarious as the mention of the term “Bill of Rights”. However, they forget that “fundamental rights” in a document do not mean much if the bearer of those rights does not have the resources to enforce those rights. That is why an audit of court cases in this regard will show that it is white people and their organisations who have had the resources to litigate. In the few instances where Black NGOs have also litigated, deeper digging will show that they got their funding from white people and their institutions. The Bill of Rights does make the “right to life” a fundamental right, yet 34 Black workers were mowed down by their own democratic government in what we now know as the Marikana Massacre. In fact, the Comrades of the murdered workers escaped being charged for killing their own Comrades under the apartheid “Doctrine of Common Purpose”. To date, no one has gone to jail for the killing of the workers.
Yes, the Bill of Rights does make the “right to dignity” a fundamental right. However, Black people continue to have their dignity denigrated by living in shacks and condemned to bucket and pit latrines. A number of Black learners have lost their lives by drowning in pit toilets. NGO Section 27 has been in and out of court trying to force the government to eradicate pit toilets in schools. Why is it that only Black people are condemned to the bucket and pit toilets under “the best Constitution in the world”? Well, some Black liberal apologists have argued that the Constitution is let down by lack of implementation by the ruling party. They seem not to realise just how structural the lack of implementation is when it comes to Black people.
Within the same Bill of Rights, somebody must tell us which landless and propertyless Black people could have written the proudly supported 25(1), which stipulates that “no one may be deprived of property…”. Some Black people strangely boast that the “freedom of expression” is a fundamental right in South Africa. Again, you need resources to enjoy your hollow right to freedom of expression. Just check out who owns the media houses. Check out who owns music recording and book publishing companies. The preponderant majority is white. Black writers and musicians will tell you how they don’t recognise their scripts and compositions every time they return from the publishing and recording companies. The less said about the commercial mass media, the better. The point being made here is that your fundamental right to freedom of expression is meaningless if you don’t have resources and institutions to enforce it.
It should by now be clear why it is that AZAPO strongly moves for the overhaul of the Constitution and the writing of not just “the best Constitution in the world”, but a liberatory one. Unlike this Constitution that forces Black people to “believe that South Africa belongs to all who live in it”, we need a Constitution that “tells no lies” and “hides no truth”. Your mere living in our country Azania cannot be enough to make you an owner of our land. For AZAPO, the land is the principal demand of the liberation struggle. The ownership of the land should vest in the people of Azania and held in trust by the State. Therefore, no individual or foreigner should own land.
Let us further explain why AZAPO calls for the overhauling of the Constitution. Following the Convention for a Democratic South Africa (CODESA) negotiating process, which later collapsed, 26 political groups gathered at Kempton Park in November 1993 to draft an “Interim Constitution”. The 26 political groups were an assortment of apartheid political parties and their puppet homeland regimes together with the ANC-aligned organisations. The balance of forces favoured the apartheid Nationalist Party (NP) regime. The Interim Constitution would serve as the basis of governance for the “Government of National Unity” (GNU) that would result from the 1994 General Elections. Those elections were to be based on a “one person-one vote” or universal suffrage. Because the negotiations were taking place under the supervision and control of the apartheid regime, it had to ensure that nothing came out of the process that undermined the protection of white minority. It is for that reason that the Interim Constitution had constraining 34 Constitutional Principles from which the “final” 1996 Constitution could not deviate. Further, the Interim Constitution, which was drafted by an unelected body with no mandate by the people, had first to be “quality-controlled” by the apartheid Parliament to double-check if there was nothing that went against the guaranteeing of white minority rights. Tragically, the Interim Constitution passed the test with flying colours, and was adopted by the apartheid Parliament in 1993 as Act 200 of 1993. It came into effect on 27 April 1994.
What do we mean when we say the body that drafted the Interim Constitution had no mandate from the people? By that we mean the members of that body were not directly voted for by the electorate of the people. They simply imposed themselves and usurped powers they never had. It is for this reason that the unmandated Interim Constitution had to be legitimated by the Parliament reconstituting itself into a Constitution Assembly in 1996. This was a short cut to by-pass the need for the necessary Constituent Assembly, for which AZAPO called.
As a matter of fact, the whole negotiating process and its product was so good in guaranteeing white minority rights that even when the racist Conservative Party (CP) mobilised against the process, the ruling racist NP convened in 1992 a whites-only referendum which proudly and confidently passed the negotiating process and its product as safe in guaranteeing white minority rights.
However, it is important to note that the CODESA negotiating platform collapsed after the Boipatong Massacre. After the collapse the NP and ANC continued the negotiating process among themselves. They agreed that in future they needed to first agree on issues among themselves before they tabled them to the broader negotiating platform. This bilateral approach angered the racist groups like the CP and the Bantustan IFP to form a counter-lobby group called the Concerned South Africans Group (COSAG). On 1 April 1993 a Multi-Party Negotiating Process (MPNP) met at the World Trade Centre to revive the negotiating process under refreshed agreements. Of importance, is that the agreements were to be reached on a “sufficient consensus” basis. Your attention is drawn to the fact that the 208-member and 26 political groups favoured the apartheid ruling NP. Please don’t ignore the political irony that the “trading” process was taking place at the World Trade Centre.
While AZAPO and the PAC boycotted the negotiations following their Kadoma Agreement that was adopted in Zimbabwe in 1991, the PAC changed its stance and joined the negotiations in the MPNP. The racist CP, which had also stayed away because it felt there were some concessions given to Black people, felt comfortable enough to join and endorse the MPNP. If you know how racist and anti-Black the CP was, you would wonder what made them so assured that they endorsed this negotiating and Interim Constitution-drafting process.
Before going any further, we need to know why it was that AZAPO boycotted the whole negotiating process. This boycott was foreshadowed by AZAPO’s rejection of the smuggling of the Harare Declaration at the Conference for a Democratic Future (CDF) in 1989. In a nutshell, the Harare Declaration was a document of some Frontline Afrikan States that favoured a negotiating settlement in South Africa at that time. In preparation for the impending negotiations, a Patriotic Front was formed with the Steering Committee comprising the ANC and PAC. AZAPO forced its way into the Steering Committee as part of the Liberation Movement. AZAPO used this status to defiantly write to all “invited” right wing and sellout political parties and inform them that they were not welcome in the Patriotic Front because they were not patriots. That angered the ANC and PAC to the extent of expelling AZAPO from the Patriotic Front. AZAPO staged protests and information sessions against the negotiating process, which it saw as a sellout process.
AZAPO demanded that negotiations with the apartheid regime had to take place in a neutral venue outside South Africa under the guidance of a mediator. In the meantime, the apartheid regime had to release all political prisoners and hand over power to a Transitional Authority because the apartheid regime could not be a player and referee at the same time. The apartheid regime and its puppet homeland structures were to constitute one delegation, while the apartheid army was to be confined in their barracks during this time. AZAPO had appointed the Botswana-based Bishop Khotso Makhudu as its mediator for any possible negotiations with the apartheid regime. If these conditions were not met, AZAPO would not participate in any negotiations that would compromise the objectives of the liberation struggle. Indeed, AZAPO boycotted the negotiations and the 1994 General Elections because they were devoid of the Land, Economy, Justice and Dignity. The erstwhile freedom fighters and their political parties were expected to co-manage the apartheid apparatus in a neocolonial State.
Granted this background, it is clear that even a Liberatory Constitution would not achieve much if the implementing agencies were not effectively held accountable. We have seen that the Parliament and the Chapter 9 institutions are somewhat compromised to discharge the duty of accountability. It is the same Parliament that frustrated a Constitutional Court ruling to hold former President Zuma accountable. The ruling party abused its majority to defend the man against 8 Votes of No Confidence. The same Parliament is now protecting President Ramaphosa on the possible money laundering in the Phala Phala scandal. The Chapter 9 institutions are captured first by dumping ruling party loyalists to mismanage these institutions in favour of the ruling party. Except “loyal cadre” Thuli Madonsela who bit the dog that fed her, all the other loyalists toed the party line. Busisiwe Mkhwebane toed that same line, but disobeyed her party when they told her Zuma had been ditched. She remained stuck, not to the public, but to Zuma. The court fights that are fought abusing the taxpayers’ money have everything to do with factional battles.
Therefore, the fundamental accountability is the vote by the voter. That is where fundamental power resides. All other power is delegated therefrom, and can be reclaimed by the voters anytime. However, the exercise of that vote requires electoral reform that protects it against abusive and corrupt majoritarianism. After all is said and done, AZAPO calls for the overhaul of the 1996 Constitution. This exercise must have a popular base where the ordinary people are mobilised and effectively informed to participate in the rewriting of the Constitution. Public consultations are one of the many available methods to ensure popular participation. Detached Black elitism, which has proved to be the proxy of the white ruling class, has shot blanks.