Undergirding the values of the Constitution is the next struggle we face

That our transition to democracy was flawed cannot be disputed. That much still needs to be done to fundamentally change the lives of those who suffer all kinds of exclusion is without doubt. Yet, the Constitution remains a transformative and progressive instrument for bringing about such change.

Donald Trump and Elon Musk are gutting US state agencies and undermining institutions and no one will be spared.

Recently Musk posted the following to his 217 million followers on X: “We should at least ATTEMPT to fire this junky jurist. The notion of having a judge job for life, no matter how bad the judgments, is ridiculous!” He also posted messages claiming the US was being destroyed by a “judicial coup”. This was in response to judges freezing certain Trump administration orders.

Vice-President JD Vance followed suit and wrote on X that “judges aren’t allowed to control the executive’s legitimate power” after US District Judge Paul Engelmayer in Manhattan blocked Department of Government Efficiency staff from accessing Treasury Department payment records.

White House Press Secretary Karoline Leavitt joined in, saying, “These unlawful injunctions are a continuation of the weaponisation of justice against President Trump” after an appeals court ruled against the administration’s bid to freeze federal spending.

Despite saying he would adhere to court orders, Trump mused that surely judges wanted to stop waste and corruption. At what point does he simply “go rogue” and precipitate a constitutional crisis by failing to obey court orders? These questions are already being asked in the Beltway and US law schools.

If what is happening in the US shows clearly that democracy must be remade by every generation, then there are lessons in this for all democracies: to be ever alert.

South Africa is not immune to similar populist strains, even as our courts, in particular the Constitutional Court, have held the line during the years of State Capture but also in respect of socioeconomic rights.

Thus far our young Constitution has offered a guardrail, but there are many anti-constitutionalists in our midst who have berated “unelected judges”, especially when they have acted as a check on power.

When Madiba inaugurated the first Constitutional Court he told us it would be “a court on which hinges the future of our democracy”. He went on to say at the adoption of the Constitution in 1996: “Constitutionalism means that no office and no institution can be higher than the law. The highest and the most humble in the land all, without exception, owe allegiance to the same document, the same principles.

“It does not matter whether you are black or white, male or female, young or old; whether you speak Tswana or Afrikaans; whether you are rich or poor or ride in a smart new car or walk barefoot; whether you wear a uniform or are locked up in a cell. We all have certain basic rights, and those fundamental rights are set out in the Constitution.”

The choice we made to be a constitutional democracy was therefore not an accident, nor was it one that went without any debate and argument within the ANC and other parts of society. The commitment to fundamental rights and against the arbitrary exercise of power was deliberate.

Reductionist thinking

It has in some quarters become fashionable to blame Madiba and the Constitution for everything that has gone wrong in post-apartheid South Africa. Given the challenges South Africa faces, it is easy (and perhaps inevitable) to slip into reductionist thinking about the Constitution itself — that it is an imported liberal concept and not worth the paper it is written on.

Many blame the Constitution for the lack of transformation within our society. It is a limited argument since it ignores the politics of the day, as well as the corruption and mismanagement that often lie at the heart of our inability to ensure that basic rights are protected.

When former president Jacob Zuma came under fire for a spending spree on his Nkandla homestead, he was often quoted as calling the Constitution “their” document. We all know what he is trying to do when he eschews ownership of it. In a world of cheap populism and easy answers, we need to dispel what is reductionist and ahistorical.

Now, Zuma leads the MK party, with a manifesto that says, inter alia, “moving our country away from constitutional supremacy towards unfettered parliamentary supremacy”.

After further attacks on the Constitution, the MK party held forth that because of our Constitution, “unelected institutions and those with money are our true rulers, not the elected representatives of the people”, and the “mass of the African working people is powerless over the state, their aspirations do not find expression in key state policies”.

The MK party promised during our last election that it would, “with a decisive two-thirds majority”, hold “a referendum to scrap the 1996 Constitution and replace it with a parliamentary system with or without a codified Constitution”.

Perhaps absurd, but in a country with 32% unemployment of which youth unemployment is highest and where the lived experience of the majority of South Africans (who are poor and black) is a lack of dignity and not the equality the Constitution aspires to, the ground is fertile for dangerous populism.

Zuma has not been alone in his attacks on the Constitution. In 2022, the then tourism minister, Lindiwe Sisulu, launched an attack on the Constitution and the judiciary. It was not the first time Sisulu had attacked the judiciary. Previously she had called black judges “house negroes”, which unleashed a storm.

Opportunistic politicians

It is easy to understand the measure of opportunistic politicians like Sisulu whose words are music to the ears of those who seek to bypass the accountability that a constitutional democracy demands. Her words then were in service of the corrupt factional ANC politics and should give us pause for thought, especially given that the anti-constitutionalist faction remains a spectre.

Gwede Mantashe and others have repeatedly attacked the judiciary in the past. EFF leader Julius Malema’s conduct at the Judicial Service Commission (JSC) has mostly indicated a disdain for the judiciary and how it functions. He has railed against the judiciary and in the lead-up to last year’s election he likened South Africa’s “captured judiciary” to that of Zimbabwe, where some judges have pandered to the politicians in power, and accused judges of playing politics by taking away the “fundamental and absolute right” that he believes MPs have to express themselves in Parliament. He added that “judges are acting like politicians, and will be treated as such”.

We must protect and defend the judiciary, despite the words of modern-day charlatans who wish to undermine it.

Undergirding the values of the Constitution is the next struggle we face. We do so by repeating the need for those in power to be held to account so that citizens regain their dignity and know the benefits of a working, living, breathing democracy.

We do so by speaking out against injustice and a lack of accountability (our so-called collective voice), by supporting investigative journalism and by using the courts to ensure that rights are realised (whether civil and political rights, the right to administrative justice, or socioeconomic rights such as the right to healthcare, housing and education: the latter is happening in creative ways before our courts).

We must strengthen attempts at constitutional education: what does it mean to be a citizen; what are our rights and obligations in a democracy? It also means holding institutions like the JSC to account, holding lawyers to account for their conduct and ensuring that the dysfunctional Legal Practice Council does its job (and that its CEO is held to account for spending sprees and other acts of dereliction).

In their seminal book How Democracies Die, Steven Levitsky and Daniel Ziblatt point out that democracies don’t die overnight. They die as a result of the “erosion of democratic norms and increased polarisation in society … and [that] institutions and norms are critical to preserving democracy, but they can be worn down slowly and systematically”.

(Levitsky and Lucan Way recently wrote an insightful article, The Path to American Authoritarianism: What Comes After Democratic Breakdown)

There is much at stake in this political moment: we must be clear-eyed about cleaning up our backyard and sticking to our proverbial knitting, building a more just society — not because of Trump’s threats but because we believe that it is only in this way that our country can truly thrive.

It is not often that one quotes President Cyril Ramaphosa but he was right when he said, in response to the irrationality of the Trump administration’s response to the Expropriation Act: “We have toiled long and hard to build a nation united in its diversity. We are firmly committed to a society that is nonracial and non-sexist. We want to live together in peace, harmony and equality. We must not allow others to define us, but more importantly to divide us. At a time like this, we need to stand united as a nation, particularly now as we are facing a harsh global wind.”

He could have added “we continue to toil long and hard” and we must do so mindful of our history and of the threats from outside and within. Especially within.