Casual Constitution comments give glimpse of future under Ramaphosa

Casual Constitution comments give glimpse of future under Ramaphosa

Whether on his track record he will be an answer to the prayer for a graft-busting president is open to question

Long before he entered Parliament and moved up and down the ladder of power, and now up again, Cyril Ramaphosa was a communist and a trade unionist. Perhaps, as he eyes the glittering prize of the presidency that is why union federation Cosatu and the South African Communist Party support his bid. It is unclear how fast Ramaphosa’s attachment to communism is today.

Possibly, his decade-long, highly lucrative detour into the world of business cured him of his earlier alignment. But his equivocal and evasive answers to questions on the Constitution, whose creation once cemented his reputation as negotiator par excellence, in the National Assembly last Thursday, brings to mind an even more famous former communist.

In the 1930s, Arthur Koestler was a fervent European communist and true believer. He was also, of course, a great writer. When he became one of the earliest dissenters from Stalinism in 1938, his disillusionment with a communism that had quickly morphed into unbridled totalitarianism resulted in his most famous novel, Darkness at Noon, published in 1940. His apostate book includes the memorable observation on the old Bolshevik Rubashov and his coterie, of whom Koestler wrote: “Ideology and power have rendered them incapable of independent moral judgment.”

That is the kinder explanation for Ramaphosa’s lateral arabesque on the property rights question. His offhand observation in Parliament was that “amending the Constitution is a strategy, implementing what is in the Constitution is another strategy”.
Maybe such spectacular fence-sitting and casual disregard for the fiercely fought constitutional document in which Ramaphosa was the leading player two decades ago is part of the steep admission price he has to pay to enter the winner’s box in the national power sweepstakes.

His tepid, half-hearted temporising of the constitutional settlement he once championed, is perhaps an early indicator of what a Ramaphosa presidency would be about: a concession here, an equivocation there, a compromise somewhere else, all wrapped up with charm and intelligence. Precisely the formula that will not bring about the desperately needed economic growth and political reforms the country needs to return to normalcy after the decade-long locust years of the Zuma era.
Surveying the prospects of Ramaphosa’s prime opponent for the ANC presidency, Nkosazana Dlamini-Zuma, now apparently ensconced in a rondavel in Nkandla, The Economist editorialised on January 21 that she was “a dismal dynast”.

But, more importantly, of what ails SA’s condition and what the next president needs to do, the magazine provided a pithy and blistering summary: “Under Mr Zuma corruption has metastasised. Ruling party bigwigs dole out contracts to each other and demand slices of business built by others. Investors are scared, growth is slow and public services, especially schools, are woeful. SA needs a corruption-busting president: someone to break the networks of patronage that stretch to the top.”
Many South Africans will say amen to that, but the more serious-minded will ask, on his track record so far, whether a Ramaphosa presidency will result in an answered prayer.

Ramaphosa is, in fact, one of fewer than a dozen MPs in the chamber last week who was also a member of the constitutional assembly that drew up the current Constitution, which the week before Zuma had tossed aside so lightly, advising the House of Traditional Leaders the government would, after a “precolonial land audit” (whatever that might mean), “change the Constitution to facilitate expropriation without compensation”.

Doubtless, when the highest constitutional officer in the land makes such a cavalier statement, this will ensure that all foreign investors head for the hills and that the 100,000 personal taxpayers who now pay more than 50% of all personal taxes in the country solidify offshore arrangements or go offshore themselves. But perhaps Zuma is desperately trying to remain relevant
by spewing populism and influencing his own succession.

A very different calculus should influence Ramaphosa, if he intends to use the power he seeks to meaningful ends, rather than simply preside over the dismal and declining fortunes of a once-admired country. He did state last week that “great injustice was done against the black majority in our country. Every black MP in the house can tell you personal stories of how families were removed from their land.”

Indeed. But what is true in 2017 was also true on the evening of May 7 1996, when Ramaphosa agreed, in my presence, the night before the Constitution was enacted, that the property issue — alongside mother tongue education and labour rights — would appear in the final version in a manner acceptable to ensure the Constitution’s passage the next day. Then he was as good as his word.

But it is worth recalling what the so-called property rights clause (section 25 of the Constitution) is all about. That Ramaphosa did not enlighten Parliament last week on this crucial matter represents a missed opportunity of great significance. Unless, of course, he does not really have much regard for the Constitution and the essential compromises that ensured its passage and persuaded the property-owning minority in this country to yield political power in the 1990s.

If that is the case, then Cyril the Constitutionalist becomes Cyril the Instrumentalist, who hoodwinked the previous power-holders here to accept the new order, largely peacefully, in 1994. If this is the case, then he joins the Blair-Bush axis on selling a false prospectus or worse.

Dikgang Moseneke has, in fact, much stronger “land credentials” than Ramaphosa. He represented the Pan Africanist Congress at the constitutional negotiations and whatever their political failure, the PAC always held a far more radical position on property ownership than the ANC, which agreed to the essential compromises at the heart of the now disputed clause and the Constitution itself. But in his later incarnation as deputy chief justice, Moseneke was an equally staunch constitutionalist.

The Land Question

He, also in the most elegant and juridically respectable manner, explained how the circle can be squared. In a speech at Unisa in November 2014, he reminded his listeners, as indeed Ramaphosa did not in Parliament last week, that “the land question was foremost at the time of the formulation of the Constitution”.

He elaborated that “this is displayed in the property clause, which is more often maligned than carefully scrutinised”. Moseneke then proceeded, in the same address, with his self-appointed task of “slaughter(ing) a few shibboleths”.

The first of these is the fact that the Constitution does not in fact protect property, “it merely protects the owner against arbitrary deprivation”. As my late colleague, Dene Smuts, who accompanied me on the eve of constitutional discussions with Ramaphosa, reminds readers in her memoirs: “Protection against arbitrary deprivation like the land grabs in Zimbabwe was our key demand; having failed to get a guarantee of property, this was for us non-negotiable, and it was achieved late in the day.”

Moseneke went further in his address: he reminded South Africans that the property clause does not carry the phrase “willing buyer, willing seller”, which is often blamed for an inadequate resolution of the land question. As he noted, further, “the state’s power to expropriate does not depend on the willingness of the landowner. The compensation must be agreed, but if not a court must fix it … the property clause is emphatic that the state must take reasonable measures to, within available resources, enable citizens to gain access to land on an equitable basis.”

That Zuma appears entirely ignorant of this deconstruction is all of a piece with his other utterances. He appears to take his lead these days from his arch political nemesis, Julius Malema, who would simply do a Mugabe or Chavez. But as with much of the blame game, which is used these days by the president and his vastly inflated Cabinet to deflect from calamitous missteps in governance, it is not about sensible policy-making or results but about creating a new set of villains or resurrecting the old ones, refreshed for current purposes.

In the same address, Moseneke also exposed the shallowness, indeed fraudulence, of those who from the height of power disparage the Constitution they once championed. Speaking of the Constitutional Court and its jurisprudence, he noted: “The court has not resolved even one case of land expropriation under the property clause by government for a public purpose. Similarly, in the same time, the courts have never been called upon to give meaning to the property clause in the context of land expropriation … it may be that the property clause and restitutionary provisions in section 25 of the Constitution on land have been hopelessly underworked.”

The fear for SA’s constitutional future is that this exposition was offered, over two years ago, by a man now retired as deputy chief justice. They were sadly not uttered last week in Parliament by the person who hopes to become the president of a constitutional democracy.

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


By |2017-03-17T09:50:55+00:00March 15th, 2017|Cyril Ramaphosa, Jacob Zuma, Opinion, South African Politics|0 Comments

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