Architect of constitution Ramaphosa now puts Bill of Rights up for grabs

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Architect of constitution Ramaphosa now puts Bill of Rights up for grabs

Late on Tuesday evening last week, President Cyril Ramaphosa’s “new dawn” morphed into a red twilight as night fell on two hugely instrumental documents, of which he was, by dint of bitter irony and in more hopeful times, a key architect.

In his ill-prepared announcement that section 25 of the constitution will be amended, without thought about its content or consequence, he has become the first president since democracy to declare that the Bill of Rights is up for grabs. This is quite a feat, and its provenance is extraordinary.

I was one of many delighted citizens who less than eight months ago exulted that the country had been wrenched from the kleptocratic grasp of an ignorant and uncaring first citizen. But, in a further incongruity, it was the ill-starred constitutional delinquent, Jacob Zuma, who had proclaimed back in 2009 just before his presidency began, “In 15 years that the ANC has been in power, the ANC has never used its electoral mandate to change the constitution and has no intention to do so.” Zuma would stress-test that document in so many wayward steps, but on that central promise he was true to his word.

That the man who has now announced the unravelling of the same constitution is the same person who guided its passage first at Kempton Park in 1993 and then in the Constitutional Assembly in 1996, is making a mockery of his signal accomplishment, one he described in 1996 as “a remarkable achievement”. It also sadly means the word of the “personification of the nation’s constitutional project” — the informed view of the Constitutional Court on the role of the president in March 2016, cannot to be trusted.

That Nkandla judgment confirmed another role for the president, that “the promotion of national unity and reconciliation falls squarely on his shoulders”. Before that fell on his shoulders, Ramaphosa told the Constitutional Assembly in its historic sitting in May 1996 — which affirmed the draft — that the constitution was the “subject of a rather fortunate paradox”. This was because, as he told MPs then, “it is no-one’s constitution and yet it is everyone’s constitution. Just as no one party sees its constitutional proposals reproduced entirely in this bill, so no one person can claim exclusive ownership of this constitution.”

Well, that was then and this is now, as the saying goes. Far more forthright and honest was the view expressed last week by Ramaphosa’s vanquished opponent — though someone who now seems to have the whip hand in the ANC, the only game in town despite the pretensions of the constitution makers of 1996. Nkosazana Dlamini-Zuma said on radio last week that “land has always been at the forefront for the ANC. We are on the right side of history here and it is in the Freedom Charter.”

I will pass by that the impeccably Stalinist and Maoist world view of being “on the right side of history” led to mass famines, enslavement and even mass murder. That’s what happens with “national democratic revolutions” in which you can only be certain of the noun and never of the qualifying adjectives.

Certainly, though, a hatred of property rights is a key credential for membership of this club. But what was striking in her declaration is how the Freedom Charter is elevated as the Holy Grail, and the actual compact that built the bridge for our new democratic order goes unmentioned. Unmentioned precisely because it is a reminder that for the ANC to obtain power in 1994 it had to negotiate and compromise.

Now — under pressure on an array of fronts — it negates the negotiated compromise and hates its own creation. One for which both Zuma and Ramaphosa, and I, voted in favour.

Ramaphosa and the ANC’s honeyed words and subsequent evasive explanations on what blowing up our constitutional compact portends cannot erase just how fundamental this misstep has been and what it means for this country’s future. Once a key pillar of the constitution is consigned to the populist bargain basement, none of its other provisions are safe from encroachment. Or, as the Indian Supreme Court put it back in 1970, “the erosion of one right in the constitution must inevitably erode the whole constitution”.

In the process of pre-empting the parliamentary process he initiated, Ramaphosa poured scorn on perhaps 700,000 written submissions the committee has yet to even consider. He told the Western Cape province to effectively “drop dead”, since his announcement was made before even the first voice there had been heard. And a survey reveals that more than 74% of the people in this province, by far the highest majority in the country, does not want section 25 amended.

Cue here to this province and minorities in the country generally: “You are on your own, and the government and a soon-to-be watered-down constitution will not protect you anymore.” He and his party gave preference over hard facts and figures to a few hundred voices raised at the travelling committee hearings. These would include, certainly, the national field survey of the Institute of Race Relations from 2017, which tells us only 1% of black respondents identified land reform as a key issue, while more than 73% thought job creation and improving education were the most important tasks for the state.

Just a week before Ramaphosa announced he was unstitching the delicate constitutional fabric he had woven two decades ago, the Centre for Development and Enterprise (CDE) produced a remarkable finding that debunks the statistics parroted on land ownership and underlines just how the racial ownership patterns have changed since 1994. Listening to the ANC it would be fair to assume that because of section 25 there has been no real change. But the CDE provides the granular detail that since 1994 more than 20% of previously held white land has been legally transferred to black South Africans.

And, of course, the lie to all this is another damning statistic: if land and restitution is the most important issue facing the country then why has the government until now only devoted a fraction of 1% in the national budget to this purpose? And, of course, in one memorable year the entire budget for land reform was blown on spending R1bn buying a five-star game reserve in Mpumalanga, making a very rich white South African even richer.

This then, ineluctably, leads to the second key document associated with the prepresidential Ramaphosa: the National Development Plan (NDP). Precisely because a key member of the National Planning Commission — one Ramaphosa, along with its chairman and now investment envoy Trevor Manuel — were so persuasive, parliament endorsed the NDP in August 2012. It promised a 5.3% growth rate, but that was subject to key conditions. Among these were that citizens “have a responsibility to dissuade leaders from taking narrow, short-sighted and populist positions”. Another demand of the plan was that there be “an evidenced-based approach to policymaking”. This meant a move away from “short term-based policies to longer-term policies based on sound evidence and reason”.

SA’s travail is that its new president — in less than seven months since his election and the wind of hope it had augured — has reversed in one fell swoop his finest achievements before he obtained the office.

Leon, a former leader of the opposition, now chairs Resolve Communications and is a senior adviser to K2 Intelligence of London. @TonyLeonSA.

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