15/02/2018 12:36 SAST | Updated 15/02/2018 12:50 SAST

SA Constitution: Not Holy Grail, But Beachhead For Change

Now that President Zuma has stepped down, the past decade emerges in sharp relief.

Former president Jacob Zuma, who resigned on Wednesday night.
Siphiwe Sibeko / Reuters
Former president Jacob Zuma, who resigned on Wednesday night.

Zuma's 10 years of anti-constitutional governance

Now that Jacob Zuma has stepped down as president, the past decade emerges in sharp relief. We have discovered that the Constitution has many enemies. State capture was born out of questioning its value and legitimacy, and the political transition that preceded it. We also learnt that there is a fire in the belly of civil society and dignity in the higher courts.

Early Tuesday morning, the ANC's national executive committee (NEC) realised that Jacob Zuma would not resign voluntarily. All his laughing condescension about being a disciplined cadre and deployee of the party was apparently forgotten.

Siphiwe Sibeko / Reuters
South Africa's President Jacob Zuma smiles as he arrives to speak at the Union Buildings in Pretoria, South Africa, February 14, 2018. REUTERS/Siphiwe Sibeko

Mark Swilling, one of the authors of "Betrayal Of The Promise", speculated darkly that his reticence was linked to the nuclear deal and his need to rush it through before #Zexit. Apparently, you don't stand Putin's government up without serious consequences.

There were rumours of a Russian hit squad stationed in Bedfordview on the eastern edge of Johannesburg. Even if ridiculous, it suggests the levels of paranoia and fear in parts of government and the ANC.

In the "Betrayal"report, my colleagues and I discussed the "shadow state" that had prosecuted a "silent coup". We argued that political decision making had shifted away from Constitutional bodies, from Parliament and even Cabinet, to informal networks comprising the president, the Guptas and key political allies — frequently drawn from the "premier league", as the clandestine grouping of provincial leaders is known.

Thus, violating the Constitution and weakening the rule of law permitted criminality and looting of the government – and state-owned enterprises in particular. The Gupta email leaks supported that argument. So, too, did Zuma's refusal to step down.

Unfortunately, there has been more than a criminal heist in South Africa.

We are comforted by the idea that these violations have been prosecuted by criminals and thugs. This is undoubtedly true. Various judicial and criminal proceedings are finally unfolding and will surely test the limits of our incredulity.

The ANC will likely not survive the coming revelations in its current form, knowing full well that the party stood by while all it all happened. Ramaphosa himself may want to slow them down until after the 2019 election. Yet such a Hollywood tale — of good triumphing over evil after many spectacular plot twists — obscures a true appraisal of what happened.

Unfortunately, there has been more than a criminal heist in South Africa. Many in South Africa's political class have given state capture the air to breathe. So too have intellectuals, academics and students, as well as many businesses and business leaders.

They have shown a spectacular ambivalence, even unbridled hostility to the law, to the Constitution and to South Africa's democracy. Some have worn this hostility as a badge of their radicalism. They have claimed that the constitution and indeed the negotiated settlement is a fraud, that it entrenches white privilege and that it blocks real transformation.

Such arguments align with disreputable business interests. It comes as no surprise that "reputable" firms are prepared to turn a profit at the expense of the Constitution and of democracy. The story is as old as colonialism and apartheid itself.

Albie Sachs, at the Mandela Initiative in Cape Town on Monday, mentioned he had spent 2017 defending the Constitution against attack as if in the document's DNA were an "elite pact" against transformation.

What was particular and radical about the Zuma administration was its preparedness to reject the Constitution, in word and practice.

But the Constitution qualifies the right to private property – it does not insist on a "willing buyer, willing seller principle" for land reform, and most importantly it makes socioeconomic rights justiciable. It is not the holy grail, but it does provide a beachhead for real change.

What was particular and radical about the Zuma administration was its preparedness to reject the Constitution, in word and practice. South Africa has had nearly ten years of anti-constitutional government.

Several civil-society organisations supported by the courts, together with dissidents in the ANC and opposition parties, have rallied to defend our democracy. In absolute numbers, it has not been many people.

It will be satisfying to see Zuma and his cronies finally go to court – and more so if we can use the moment to recommit to progressive change in the framework of democracy and of the Constitution.

Ivor Chipkin is the executive director of the Public Affairs Research Institute (PARI) and coauthor of "Betrayal Of The Promise: How South Africa Is Being Stolen". "Shadow State: The Politics Of State Capture" is due to be published by Wits University Press in June.