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The content of the Constitution must align with its intent

11 March 2012

Article For City Press

The use of fear and ignorance as political weapons is not new to South Africa. Remember the `swart gevaar`, the `rooi gevaar`, and more, recently many people were filled with fear and sheer horror when they contemplated the prospect of the ANC winning a two-thirds electoral majority.

An article in City Press titled `ANC wants new Constitution` is the latest installment of this alarmist and fear inspiring approach. It is part of a concerted effort to suspend reason and invoke fear. It is part of a narrative that suggests that the ANC would like nothing better than to reverse the country`s democratic gains, erode constitutional freedoms, and undermine the independence of the judiciary. Not only are these assertions untrue. They also diminish the opportunity for rational discussion about the challenges facing our country.

If we accept the logic implicit in these assertions - and in the City Press headline - then there are certain subjects, which we dare not touch for fear of being labeled anti-democratic. Subjects that have been declared off-limits include amendments to the constitution, transformation of the judiciary (or any other important social institution), and the land question, among others. But we can`t accept this logic. We cannot accept that issues that should be debated rationally should be governed by ignorance and preconceptions rather than facts.

The fact is that the ANC does not want a new Constitution. It is not contemplating "dramatic changes" to the Constitution. The City Press headline is simply untrue. The ANC was the majority party in the Constitutional Assembly that drafted our Constitution together with other political parties. The principles enshrined in our Constitution reflect positions adopted by the ANC over many decades, starting with the country`s first bill of rights in 1923. Now in its 100th year, the ANC has no need, no desire and no interest in abandoning the constitutional principles for which it waged a relentless struggle and for which so many people sacrificed so much.

Another fact, frequently forgotten, is that our Constitution has been amended no less than sixteen times since its adoption in 1996. In each of these instances, the amendments have sought to strengthen our democratic system and to more effectively promote good governance and social development. In each of these instances, the amendments have been preceded by thorough debate and consultation. They have not been made hastily or carelessly.

Our Constitution was not brought down from Table Mountain on stone tablets. It was written by ordinary people, with all their flaws and limitations, in the earnest belief that the provisions they adopted best define the society we want to build. Many South Africans agree that this Constitution is a remarkable achievement and that it captures the values that we share and the democratic principles that we all hold dear. Many agree that it establishes a foundation for a new, just society, recognising that we need to formulate measures to redress the injustices of the past. Most of us agree that ours is a Constitution that we must celebrate, cherish and defend.

That does not mean that every provision of the Constitution is perfect. The fact that it has been amended a number of times since its adoption suggests that there is often a gap between theory and reality. Through practical experience we have gained better insight into the process of governance, the constraints on development, the challenge of making equal rights for all a reality, and meeting the developmental needs of our people. We have had an opportunity to examine the ways in which the provisions of our Constitution contribute to our progress as a nation.

We should at all times be guided by the principle that the content of the Constitution should be aligned with its intent. The Constitution was adopted with the specific purpose of healing the divisions of the past, establishing a society based on democratic values, social justice and fundamental human rights, and improving the quality of life of all citizens. Our responsibility is to ensure that the provisions of the Constitution fulfil this purpose. Where we find provisions that in practice hamper the pursuit of these objectives, we should not be afraid to discuss these openly and frankly.

We should not take lightly any proposals to amend the Constitution. We need to be certain about the intention of these proposals, and deliberate in the manner in which we approach any amendments. The Constitution was adopted after lengthy negotiations and an extensive popular consultation process. We drew on a rich tradition of constitutional thought within South Africa, and on the experiences of several other countries. We therefore need to expose any proposed amendments to the same degree of care, scrutiny and popular engagement.

We need to ensure that any amendments reinforce our democratic values, that they strengthen the promotion of fundamental human rights, and that they qualitatively advance the struggle for the achievement of social justice. That is our historical responsibility.

The ANC this week released a series of discussion documents in preparation for its policy conference in June and its national conference in December 2012. Together these documents seek to answer the question: What do we need to do, as a nation, to accelerate progress towards the achievement of a better life for all? These documents are intended to stimulate debate not only within the ranks of the ANC, but across society.

The challenges that our country faces require vigorous, honest and open engagement. It is only through sincere engagement and collective action that the future well-being of our people will be secured. It will not be secured by fear, ignorance or alarmist headlines.