As the thirtieth anniversary of South Africa's non-racial and non-sexist democracy fizzles and the fiftieth beaconing, pursuing a human rights-based rule of law by erstwhile revolutionaries will create a new tidal wave of citizen-state relationships, particularly the understanding of the rule of law. Essential public questions include how to accept the extension of the equality clause of the Constitution in a context where restitution has not run its entire race. Other concerns include policy questions on the obligation imposed on natural and juristic persons, including organs of state, to fulfil the rights in the Bill of Rights in the interest of all who live in South Africa belonging to them.
Constitutional orders hold solutions to post-conflict political settlements. Yet rule by law and post-conflict triumphalists tend to undermine rules-based constitutional and democratic orders. Some 'peacetime and nostalgic revolutionaries' peddle notions of radical restitution, knowing very well that a political settlement defined the current governing order. To them, societal transformation is subjective and should have new dispossessions as a point of departure when no war was outrightly won. The truth of the CODESA settlement has been choked by the lie of a struggle won without far-reaching compromises locked in the Constitutional Principles enacted as Act 200 of 1993 by the outgoing apartheid state government.
In the past thirty years of RSA democracy, societal change has created new knowledge and lived experience about the nature of the democracy we are building. It is a profoundly liberal democracy, albeit steered by a left-thinking, not living, governing elite. The constitutional text has, on many occasions, been used to constrain any ideological orientation which might be at variance with the liberal character of the constitutional order enacted in 1996. The character of the constitution and the rule of law obtained in RSA has been diffusing itself into the governing party's way of governing itself including the current renewal program, if internal to the party litigations and new member integrity management mechanisms are the evidence.
The new question will now be, will we, the people, be made constitution literate well enough to be trusted by those we borrowed public power to be our government? To what extent are those wanting to stay in political power ready to govern a population that fully understands its position in society as the Constitution has determined? Without creative ways to incorporate constitutional literacy into people's daily lives, public policymaking, democracy, and liberation may ultimately fail in its promise of a better life for all. It would seem those with governing hegemony deny and undermine the Constitution as the country's supreme law despite the truism that it touches all natural and juristic persons.
Our brand of constitutionalism
follows a process which is blind to who benefits from the freedoms a
Constitution guarantees its citizens. In RSA, the state is obliged to respect,
protect, promote, and fulfil the rights in the Bill of Rights, which it
declares is the cornerstone of democracy. To the extent that you are a citizen,
the Constitution sees you as a human with rights and guarantees within the
entrenched limits. The trustworthiness of state institutions is etched in their
capability to be constitutional, including humans elected or appointed as
organs of state. Because of the public power they embody, their conduct is a
function of public sentiment and thus subject to the independent adjudicative authority of the
state. For a while, and because of misconstrued post-liberation beliefs, there
have been challenges by those managing the democratic order to discern what is
legal but not legitimate and what is legitimate but not legal within the
confines of the reigning constitutional order.
The
RSA Constitution has found itself in the crossfire between contesting
candidates in the run-up to most in-governing party elective conferences. This
is either because of the denial to accept the settlement for its beyond-apartheid
conflict objectivity or the appetite to keep political and social divisions as
the currency of politics. This has made interest a condition of diversity and
opinion and a political trading place of settled social emotions about South
Africans.
The
governing elite or liberation movement did not notice since 1994 a surge in
civil society movements formed in the name of the Constitution and its various
sections. As the opium of incumbency became addictive to those governing, the
power of the Constitution to sustain political power was ignored to levels
where the true nature of the democracy was misconstrued as a limitation to the
use of state power. Civil society and think tanks started work on liquidating
the potency of majority rule through civil and constitutional court litigation.
Critical court decisions were obtained from the Constitutional Court to permanently
render aspects of the liberation promise in the Constitution moribund.
The
latest case on cadre deployment represents the grand finale to choke whatever
transformation lags that might require acceleration in the likelihood of a
radical economic transformation coalition government. Notwithstanding the
political nuances, the cadre deployment case will go into history as one that
exposed that the arrogance of majority rule cannot co-exist with a rule of law
anchored in constitutional order. Chapter ten of the Constitution and the true
meaning of public service and being commissioned into the public service could
not co-exist with a condition where envelopes of mandates are given to the
deployed without regard to what applies to every citizen. The RSA
Constitution makes it easy to read and accessible. Knowledge of what it
provides is important for the health of the democracy. Anything outside this
can only amount to anarchy. CUT!!!
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