Reckless amendments to the Constitution will be illegal
Section 1 of the Constitution, the ‘founding provisions’, can, in a way, be described as the ‘constitution of the Constitution’. It provides the basis for the rest of the Constitution and can only be amended with an historically-elusive, two-thirds majority in Parliament.
Its provisions stipulate that South Africa is democratic, that our society must be non-racial and non-sexist, and that the Constitution, as well as the rule of law, is the supreme law of the land. And it is these provisions, among others, that inform the remainder of the Constitution.
The Bill of Rights, which comes immediately after the founding provisions in the Constitution, is the most substantive brake on government power, seems to be given more prominence by South African civil society. It is unjustifiable for the founding provisions to continue to be as underemphasised and underappreciated as they have been up to now. We have allowed strikingly obvious violations of our founding provisions to occur, not only by the executive government, but Parliament and, on occasion, the courts.
The most-often violated and most-misunderstood founding provision is the supremacy of the rule of law. We, rightly, acknowledge the Constitution as the supreme law, yet the Constitution itself provides that the rule of law is co-equally supreme. The rule of law, furthermore, is a well-understood principle that dictates reasonable (and reasoned) governance as well as the protection of human rights. Each new piece of legislation that assigns more generous discretionary powers to regulators, tosses the rule of law further aside.
So overlooked are the founding provisions that, in recent months, there have been some absurd and dangerous calls for constitutional changes that fall foul of what the founding provisions envisage for our society.
Jimmy Manyi of the Progressive Professionals Forum and Meokgo Matuda of the ANC Women’s League have called for a return to parliamentary sovereignty, where the whim of Parliament, not a constitutional instrument, is the supreme law.
The Public Protector has recommended that the Constitution be amended to remove the Reserve Bank’s mandate to protect the value of the currency.
And, over the years, various politicians and associations have called for section 25 of the Constitution, the provision that protects the private property of all South Africans from arbitrary deprivation, to be repealed.
All of these calls are reckless, short-term political thinking devoid of basis in the spirit of our founding provisions. Constitutionalism and the rule of law require long-term thinking, which recognises that the government of today is not the government of tomorrow, and that the outrage currently dominating public opinion will not always be around.
According to Prof Trevor Allan at Cambridge, even when the rule of law is not written into a constitution, it is still part and parcel of any common law legal order and carries the same effective weight as if it were written down. In other words: try as one may, one cannot get around the rule of law.
The late Constitutional Court judge, Tholakele Madala, echoed this in the South African context, saying that “the rule of law is a fundamental postulate of our constitutional structure. This is not only explicitly stated in section 1 of the Constitution but it permeates the entire Constitution.” He went on to describe some of the features of the rule of law, including an aversion to arbitrariness, equality before the law, and recognition of basic human rights.
If the rule of law “permeates” the Constitution, it follows that an arbitrary, unreasonable, and human rights-violating amendment to the Constitution would fall foul of the rule of law, and, thus, be unconstitutional. Whether the courts agree with this position is a separate and unrelated question.
Any constitution is meant for the ages. The Constitution of the United States – a standard-setter for constitutionalism – has endured for 230 years and been amended only 27 times. South Africa’s Constitution has been amended 17 times in 23 years, with most amendments being technical or procedural. Substantive amendments appear to be on the horizon, however.
If our Constitution should lose its basic character as a shield for the South African people against undue government overreach within the period of only one political party’s rule, there can be no doubt that tyranny is the rule and freedom has again slipped through our grasp.
* The author Martin van Staden is Legal Researcher at the Free Market Foundation and Academic Programs Director of Students For Liberty in Southern Africa.