Our Constitution: Is it time for an ecdysis or transformation?

 A country’s constitution reflects society's emotion about its past and a projection into a future the drafters knew they might not be part of its zenith benefits. This defines the leadership cohort that negotiated the South African Constitution. Their never-again emotion that went into the final text is algorithmic to the 'why and what questions' political incumbents cannot find answers to as they negotiate their lived experience and myths of power with a profoundly humanism-driven constitution. The rising anti-constitutional democracy rhetoric can be traced to this dichotomy of believing you are in power, but the normative coordinates of your power dictate that you are subservient to the constitution. If South Africa could be an autocracy, its constitution is the autocrat, for its word is final on all that defines South Africanness. The constitution is a living document that can be as good as its relevance to society. As society’s ability to be democratic matures, its appetite for questioning the foundations of what constitutes it as a sovereign nation will correspondingly grow. South Africa is in the midst of a consequential review of its political and economic order. This review has, for a while, played itself outside the social compact it has adopted as a means to constitute itself as a nation, the Constitution. This rendition would examine the recent conference on reviewing the Constitution and whether it was an ecdysis or (metamorphosis) transformation. It borrows its analytical tools from natural science space for conceptual stability.

ABOUT THE CONSTITUTION 

 

The South African Constitution remains one of the most celebrated ones in the world. Its capability to proffer a balance of individual liberties with political stability makes it a complex convergence platform for an open society dispensation with interesting state intervention to facilitate development. It establishes a framework for the cardinal human freedoms of speech, conscience, press, association, and assembly to be lived. It allows humanity within its jurisdiction to have guaranteed rights in all their generations, only limited by the extent of extension pending resources and affordability. 

 

Through design, the Constitution expresses a political order South Africans have agreed would enable them to govern each other. It is anchored on a basic structure pillared by democracy, equality, reconciliation, diversity, responsibility, respect, and freedom. From this structure, it boldly declares itself as the supreme law, which derives its moral authority from its expressed intent to recognise past injustices as the transformation edict to being South African.  

 

Without vitiating the benefits of being a spontaneous order within which human enterprise flourishes, the Constitution commits its supreme law character to

 

·      healing divisions of the past and establishing a society based on democratic values, social justice, and fundamental human rights,

·   laying the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law,

·      improving the quality of life of all citizens and freeing the potential of each person; and

·      building a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations,

 

As a consequence of these commitments, the Constitution defines South Africa as "one, sovereign, democratic" state obligated to the founding values of,

 

·      Human dignity, the achievement of equality and the advancement of human rights and freedoms.

·      Non-racialism and non-sexism.

·      Supremacy of the constitution and the rule of law.

·      Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government to ensure accountability, responsiveness, and openness.

 

The above architecture anchored on the humanism defining South Africanness permeates all sections of the Constitution. As an edifice to which all structures and arrangements on how to govern each other, the Constitution owes its right to existence to the societal liberation dream delivered by its preamble and founding values. 

 

ECDYSIS OR TRANSFORMATION 

 

Like any living document, the South African Constitution will always derive its legitimacy from the extent to which it stays relevant to those it regulates their lives and livelihoods. Understanding democracy as the arrangements with which society agrees to govern itself and how that relates to the supreme law of a society defines the limits or expansive character of democracy. This is simply because "democracy (as defined herein) unarguably remains the best form of government for peaceful societal change". The definite imperfections of democracy as a lived human experience, especially its dogmatic reliance on (absolute or otherwise) majority rule, coaxes those in the trade and bargaining business of interests into coalitions. Generally, these coalitions, otherwise also called political parties, get aligned by the mechanics of haggling and pursuit of interests rather than the true principles the delivered liberation dream is about. 

 

South Africa's department of Justice and Corrections, under which constitutional development resides, has embarked on a process to check the health status of the constitution. At a conference organised around sixteen thematic areas, the fundamental question asked delegates was, 'where are we about where we agreed we are headed as a society and 'nation'. Answers and the emerging discourse on the Constitution in-course review process are yielding further questions of 'should this be approached as an ecdysis or a total transformation enterprise'. 

 

Ecdysis is a concept borrowed from zoology and, more specifically, reptiles or species that must shed a part of themselves to allow further growth. Simply put, it is the process of shedding the outer skin in reptiles or casting off the outer cuticle in insects. In both instances, ecdysis is about the regeneration of damaged tissue. The essence of ecdysis as an organic process is shedding what the organism does not need to grow, grow, or change in shape. Whilst ecdysis is about continuous shedding and casting off, metamorphosis is about form change from immature to adult stages.

 

The question this rendering is dealing with is to what extent a constitution should shed what its society no longer requires or cast off those aspects that choke societal growth. Or should a constitution change from the immature to the adult stages? In this whirlpool of considerations, further questions on whether the Constitution must go through a shedding, casting off, and change from immature stages to adult stages or the democracy itself, or the society a Constitution is drafted for. 

 

Arguably the South African negotiation process, including its constitutional development process since the promulgation of the first constitution in 1910, has gone through stages of immaturity to its present-day adult form if its famous advanced character is accepted as a measure to define an analytical end state. Pity it cannot be argued that as the Constitution was metamorphosing, the beneficiary society was tagging along, save for a cognitively aware and sensitive elite, which took an interest in the constitutional changes/happenstances. 

 

Without preempting the final report of the 2023 Gallagher Convention Center conference on the Constitution, the summation by Minister Ronald Lamola indicates that the essence of the Constitution will not be changed, save for its political outer cuticles that require casting off to allow society to understand itself better by knowing its constitution. The thematic thrust of a way forward was aptly put by Reverend Dr Barney Pityana when he emphatically declared that "we do not (yet) have a constitutional problem, but a problem of governance and government". This thematic thrust also came from the sixteen thematic breakaway sessions, thus indicating more of an ecdysis than a metamorphosis. 

 

The suggestion for conceptualising a second republic by transforming the constitution is premature, if not outrightly, unnecessary. A recalibration of sub-constitution legislation and policies to impact the liberation promise it entrenches is what should preoccupy the bulk of societal energies. As an embodiment of South Africa's political order and system, the Constitution should be protected from losing its supreme law status by not allowing it to suit administrative government but instead making it support the principles that undergird it. As a society, we must know that "elected representatives can reward powerful factions, and the resulting bargaining process might mean that even worthy politics can find themselves forced into compromises that are inherently against the liberation promise interests of society.

 

THE. STRONG STATE AND THE CONSTITUTION 

 

The adage that 'societies owe their freedom to restraints of freedom' is confirmation that governments, and not constitutions, must provide and implement public laws on administration, property and the well-being and safety of society. The state must therefore be strong to protect the already realised gains of the liberation promise. 

 

The robustness of reviewing the state and how it lives the Constitution should include making the accountability and oversight ecosystem its central consequence management pillar. In pursuing the national interest-...-the state should be serious about its defence and policing system, or rather criminal justice insecurity. The ability to wage war against poverty, unemployment, inequality, crime and corruption, undocumented immigrants, and threats to national security "requires the material capacity to raise, train, equip and maintain new leader of society troops and brigades. This capacity and capability will be equally handy in dealing with looming climate change-induced catastrophes, pandemics, and disasters with catastrophic human dislocations. We must be such a strong state not to let the liberation promise that our constitution free has to offer not to be only chances but managed certainties.

 

CONCLUDING REMARKS 

 

The Constitution is not the problem. Yes, it requires continuous development to cast off cuticles and shed skin changing the dynamic species it has become. We, the people, and the subsystems to make the constitution work require changing from our current immaturity to our different, mature selves. In Hayekian parlance, "we must recognise that we may be free yet miserable. (Political) freedom does not mean all good things or the absence of all evils. CUT!!!

 

🤷🏿‍♂️Tshikani Vumbiwa tuu, a rhina nandu. 

🤷🏿‍♂️Tirhani vhanu na ti systems