According to a recent report, President of the Progressive Professionals Forum (PPF) and former senior ANC advisor Jimmy Manyi says that the South African government should consider doing away with the country’s constitution and should move to an alternative form of governance led by a Parliamentary majority.
Manyi’s criticism against the Constitution comes from what he believes is a lack of transformation that should be blamed on our Constitution. His calls for a majoritarian democracy aims to give power to the majority of the country who according to him should be given primacy in our South African society.
This, however, raises a number of issues
The Fallacy of Majority Disempowerment
In South Africa, there exists a narrative that the majority of the country are disempowered in all or most facets of society. This is clear from Manyi’s statements about the Constitution. Many blame poverty and unemployment on other factors, without ever correctly blaming those who deserve the actual blame.
Most South Africans are not economically disempowered because of our Constitution or shadowy figures that control so-called “white monopoly capital.” South Africa has high unemployment and rampant poverty because of inadequate recognition from within the ANC-led government that it is failing the country in the education sector, the healthcare sector and is impeding economic growth with ineffective regulations and legislation.
It seems ironic that in a country where the ANC and its supporters are the biggest influencers and callers of shots in almost all spheres of society, that other vague issues are blamed. Surely even Manyi himself is able to see that the pieces of legislative paper are not the reason why South Africa faces an economic crisis. “Spiralling poverty”, as Manyi puts it, is not created by legislation but by a lack of jobs.
It is difficult to take arguments for structural oppression seriously in our modern South Africa when the ANC government has been the main and most powerful political structure during the past two decades. We see this happen often. Manyi blames our problems on the Constitution. Other ANC members blame capitalism, others point to so-called “white monopoly capital”. The ANC manages to simultaneously be the hero when they canvas for votes but play the victim when it comes to challenges that our country faces. This is a clear lighting rod attempt by members of the ANC to attempt to shift the focus away from their failings.
South African Constitution is seen as the most transformative tool available.
The criticism that Manyi levels at the Constitution at a time when most legal writers agree that domestic legislative interpretation is dominated by transformative constitutionalism is quite ironic. Both our Constitution and legislation are vigorously interpreted in a transformative way. Our Constitution actively supports transformation in its particular wording. Even legal textualists will have trouble avoiding the transformational mandate and powers which are explicitly embodied in our supreme law.
Section 7 of the Constitution, for instance, places a duty on the state to respect, protect, promote and fulfil the rights as set out in the Bill of Rights. Here the Constitution places not only a negative duty on the state to refrain from infringing existing rights, but also places a positive duty on the state to work towards the realisation of rights for all. This is a clear deviation from so-called “liberal” constitutions which only place negative restraints on the state and leave its people be free.
Section 8, in addition, makes clear that the Bill of Rights applies not only to the state but also to private people and institutions. This again goes way past a tradition liberal constitution and neatly into the realm of transformative constitutionalism.
The fact that Manyi believes the Constitution falls short in this regard shows his ignorance when it comes to South African law. To suggest that our Constitution does not adequately aim to transform is blatantly ignoring the truth.
It is worrying that the waters of the debate surrounding the merits of transformative constitutionalism are being muddied by baseless statements such as this recent one by a former ANC official. We should rather be having debates on how transformative constitutionalism has failed our country in legal terms.
Calls to go back to how Apartheid government functioned
A further irony that Manyi adds to the mix is that his calls for parliamentary supremacy remind one of the systems which the apartheid government used. The oppressive apartheid regime was able to push through racist and discriminative legislation because the legislator was the supreme law of the country. Had there been a supreme Constitution the legislative branch would have been bound to it.
Few countries in the world have successfully navigated their way to a free and fair society while having a supreme and sovereign legislator. Most countries have gone with the tried and tested trias politica (separation of powers) to ensure check and balances.
Whether or not Manyi realises the parallels with the apartheid government and his suggestions or not, it remains frightening that public figures such as himself are either as uninformed or blatantly wrong about issues as important as this.
The call by Manyi to have a supreme majoritarian parliament is bound to also only last as long as the ANC is the ruling party. It remains difficult to imagine a situation where the ANC comfortably sits back and gives free reign to an opposition party to rule the country from parliament. The reason he calls for a South Africa without a supreme Constitution and a sovereign and supreme parliament is because Manyi believes that pesky opposition parties get in the way of transformation. Nobody reasonably expects him to take this as a principled opinion when an opposition party takes power in the future.
I believe that the ANC should put their Manyi where their mouths are and clearly state their stance on the status and importance of having a constitutional democracy.