Our constitutional promises and its premises have been flattened into a single unadorned and unqualified concept: the pursuit of “transformation”, writes Tony Leon.

With debate raging and court challenges looming on the government’s version of “transformation”, you could be forgiven for thinking that the SA Constitution consists of just one section.

On 9 June, President Cyril Ramaphosa wrote in his newsletter that:

“Our Constitution reflects the promise we made to one another and to future generations to redress the injustices of the past and realise our full potential as a country.”

This he correctly advises is based on the opening words of the Constitution’s preamble. Though he skips past the qualification in the same preamble that the Constitution also promises that “every citizen is equally protected by law”.

His own analysis compounds when in the same newsletter he conflates the SA Constitution with the ANC’s Freedom Charter and offers the view that “broad based black economic empowerment is not just a policy choice but a constitutional imperative”.

Imperatives 

A close reading of all 243 sections of our Constitution suggests that the document contains many such “imperatives”. There is, for example, the equal protection clause; there is the imperative against “unfair discrimination” (direct or indirect) on “one or more grounds including race”. There are commitments to “freedom of trade, occupation and profession” etc.

And the Constitution itself anticipated that given the often-conflicting claims embedded in the document, the courts would have to balance matters by promoting values that underline “an open and democratic society based on human dignity, equality and freedom”.

Any society and constitution tussles between the concept of “equality” on the one hand and “freedom” on the other. It is a dynamic balance that goes to the heart of the debate between freedom from state interference on the one hand and equality of outcomes on the other.

Sword for advancing equality 

The fact (and it was fiercely contested at the multiparty negotiations process in Kempton Park in 1993) that both concepts are embedded in the Constitution is a reminder, contra the ANC view of matters, that the document is both a sword for advancing equality but also a shield to protect minorities and individuals from being trampled by majoritarian claims.

When Parliament in May 1996 debated the passage of the Constitution, as leader of the Democratic Party, I offered the view that in good faith supporting the Constitution – its test of viability lay in the future:

“It has been said that the government is free in proportion to the rights it guarantees the minorities. In drafting another Constitution, Thomas Jefferson said:

‘All too will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which law must protect, and to violate would be oppression.’”

The obvious point I underlined that day, but which has deliberately been mischaracterised since, is that the majority – however constituted – has the government of the day on its side whose purpose is to enact laws on its behalf. Minorities, whoever they are, depend on rights under the Constitution to protect their interests.

Trashed by Trump

In America, it is noteworthy that Jefferson’s letter to James Madison in 1787, containing those lofty words, has been comprehensively trashed 238 years later by Donald Trump’s executive orders and overreach. Despite its promises of equal protection, this is not a great time to be a member of a minority group in the US: whether a faculty member of a dissenting university, a broadcaster with anti-Trump views, an undocumented migrant, or a partner in a law firm which opposed the president at some stage.

Ramaphosa himself is no slouch at deliberately confusing a constitutional right with a claim that anyone seeking protection under provisions of the document is to be tarred with the brush of support for apartheid.

Thus, he told an election rally in Soweto on 26 May 2024:

We will not allow parties who yearn for the apartheid past to undermine the Constitution to protect the privileges of the few.

But it is precisely “the few” who most need the protection of the Constitution. His ominous warning, containing a smear by association, did not reference which party or parties participating in the democratic elections had expressed such “yearning”. The casual listener could assume that the president, the enforcer in chief of the Constitution itself, was warning all parties not to use the very constitutional instruments, such as court challenges, the same Constitution grants every citizen and party.

The current tide here suggests that all our constitutional promises and its premises have been flattened into a single unadorned and unqualified concept: the pursuit of “transformation” however hollowed out and corrupted in (mal) practice the principle has become.

A cruder outlook

While Ramaphosa at least offers some narrow constitutional claim in defence of his transformation agenda, his party colleague, ANC deputy secretary-general Nomvula Mokonyane, has a far cruder and more conspiratorial view.

In a recent interview, she said that her party must “put a stop to the global right-wing movement that seeks to take advantage of the GNU (government of national unity) to undermine the former liberation movement’s transformation agenda”.

Since this interview in the Sunday World on 15 June was referenced with heavy criticism of her party’s coalition partner, the DA, she clearly had in mind DA court challenges on aspects of this “transformation agenda”. She questioned the “viability” of a GNU, which, in her view, “The DA seeks to undermine at every turn.”

Legal action against the EEAA

This “undermining” was given fresh force when the DA launched legal action against a central pole of the transformation tent – the Employment Equity Amendment Act and draft regulations which – in spokesman Michael Bagraim’s view “forces employers to declare the race of their employees” and introduces “crude racial quotas” as mandatory across the economy.

Quite how this aligns with the promises embedded in the Constitution enacted with such hope and hype back in 1996 is open to question.

But what is not so open to question is the fundamental purpose of a Constitution itself. It is to vouchsafe and protect rights, especially those who sit outside the favour of government or ruling party.

Let’s just hope that when the Constitutional Court is seized with this matter that it considers all the provisions and sections of the Constitution, and not selectively quote just one provision in it.