OPINION: Conserving the Constitution

There was a time not so long ago when the ANC dominated and led the discourse, filling the public space with ideas for debate and further discussion.

For a while now, there has been an uneasy feeling that the ANC has slowly but surely lost its intellectual heart and that there has been a steady 'dumbing down' within its ranks. Whereas before many within the ANC welcomed policy debate as a 'battle of ideas', now it seems that a greater number have started to shun detailed debate about policy. Without romanticising the ANC's history, its early founders were rooted in intellectual activity.

These days all manner of people appear to speak for and on behalf of the ANC, with some of its leadership being found truly wanting. One need only take a cursory glance at Minister of Sport Fikile Mbalula's Twitter feed to understand just how shallow some debates have become. President Zuma himself seems to be caught with his foot in his mouth just about every time he speaks in public and ANC secretary general Gwede Mantashe is known to shoot from the hip rather too recklessly.

Recently, the ANC Youth League in the Free State recently marched to have the Treatment Action Campaign (TAC) deregistered - an astonishing attack not just on an NGO with a proud history, but on freedom of speech and association. Is this campaign against the TAC one which is sanctioned by ANC HQ or is it simply another one of those marches at which we shrug our shoulders in resignation as we contemplate the state of national debate and the ANC's losing its political moorings as it becomes ever more insecure in power?

In the face of increasing electoral competition (which will only intensify ahead of the 2016 local government elections), the ANC appears to have run out of transformative ideas and more easily resorts to name-calling or using its majority rather more crassly than in previous Parliaments. The ANC's inability to lead public debate about the most important issues facing South Africa, such as the widening chasm of inequality, has created something of a vacuum.

So, it is in this context that the ANC's near-silence on the question of apartheid and colonial-era national monuments has been almost deafening. Minister of Higher Education Blade Nzimande issued a statement in support of the UCT #Rhodesmustfall campaign and this week the deputy minister of higher education was set to join the UCT night vigil ahead of the council decision regarding the Rhodes statue. In addition, the Western Cape ANC Youth League has found some voice on the matter at the eleventh hour. Rather come-lately, reactive contributions to the debate one might say.

It is hard to know what the ANC's position is in government or as a party, regarding the rather more nuanced debates we should be having regarding our past, heritage and monuments.

Of course, to limit the debate to one about monuments only is shortsighted. For it is one about place, inequality, marginalisation and that elusive notion of transforming the structure of our society. Most significantly, the campaigns by the SRCs at UCT and other campuses have sought to fundamentally question our negotiated transition and its compromises. At a recent meeting of UCT students, Nelson Mandela's role and the compromises struck in the early and mid-1990s were being vociferously challenged. It is this that should make us all sit up and take notice. For part of the negotiated transition was a Constitution that provides a framework for a deliberative and participatory democracy.

In many senses, the Constitution remains aspirational as rights are 'progressively realised', that phrase in the Constitution so loved by lawyers and judges, but which often means that socio-economic rights to housing, healthcare, water and social security are to be deferred to those waiting, sometimes patiently, but nowadays increasingly impatiently. Mostly, the waiting is as a direct result of an ineffective state hamstrung by corruption and a lack of capability.

And perhaps this is why the ANC has been reticent to lead this debate on monuments because it takes us to the heart of not only the negotiated settlement but also its own record on socio-economic 'delivery' and its presiding over an increasingly unequal society. In addition, any interrogation of inequality and the marginalisation of the majority will cut to the heart of power, the deals done which undermine the poor. It will surely take us to analysing a post-apartheid state which sits very happily alongside the Lonmins of the world and which is comfortable to use its brute force against its own citizens on behalf of big capital.

And it seems clear that if the ANC cannot lead the debate (why should we always expect it to, some may ask?), opportunists such as the EFF will continue to occupy the spaces left by the vacuum of leadership our country suffers from at present. What we have currently is a disparate, divided public discourse and debate with very little solidarity across class and race. We have a split labour movement, students on the rise and a weakening ruling elite, doing deals in backrooms and manipulating state institutions against a backdrop of unsustainable inequality.

What is clear though is that the #Rhodesmustfall campaign has touched a raw wound in our society. Yet, it has also exposed that quite unique South African brand of intolerance. During a meeting at UCT, students 'demanded' that UCT council chair Barney Pityana vacate the chair, to which he acceded, only to be replaced by someone more willing to direct the discussion in a manner acceptable to those in the room. During the discussion, those who voiced even the slightest dissent appeared vilified. On the #Rhodesmustfall Facebook page, concerns were raised about the university soliciting opinions from its alumni. Critics were quite clear in saying that this was a calculated move by UCT to 'drown out' black voices with white voices and that this was not a debate in which white people should or could realistically participate since it concerned the 'centering of black pain'. So, empathy was not required either, it seemed.

Of course, the illogic assumes that all alumni are white and also that all black alumni (and students for that matter) agree with the campaign. The creation of 'them' and 'us' might have some dangerous consequences for future transformation debates whether at UCT or elsewhere.

Many who have expressed doubts or misgivings regarding the campaign have been labelled (that other very South African thing we do) as reactionary, liberal, and various other perceived 'insults'. Some social commentators supporting the campaign talk openly of 'calling out' or 'taking down' those with whom they disagree. We label each other because of a fundamental lack of trust and so therefore perhaps we should not be surprised at these ad hominem attacks.

So, there has been a strand of intolerance in this campaign which some might argue militates against the spirit of the Constitution. Yet, these strands of intolerance should not be the undoing of an important debate and all attempts to ground the student struggle in history and intellectual debate should be encouraged.

But it was also the ANC who started questioning the Constitution as mitigation for its own failures of governance. It is also the EFF that has used the 'anti-Constitution' sentiment to grab land and use the current student struggle for its own narrow political gain. So, the accumulation of this uninformed, populist rhetoric can have all manner of meanings and uses, most of them pretty dangerous.

This week Albie Sachs, former Constitutional Court judge and 'struggle' stalwart, added his considerable gravitas to the debate. He used the example of the Old Fort prison, the bricks of which were used to build a new Constitutional Court in the heart of Johannesburg. It represents the building of something new and powerful out of the old evil of the fort prison. It is the kind of intervention that was welcome, for its calm wisdom and wide reach into the past. But one wonders whether anyone heard Judge Sachs or truly listened to what he had to say amidst the noise of the politics of now?

The Constitutional Court and our Constitution were, after all, about trying to accommodate a diversity of viewpoints and should be the starting point of our deliberations on difficult questions. It might not provide the answers but it ought to act as a guide. The injustices of the present cannot be laid at its door.

It would therefore be a pity if, in the questioning of the negotiated settlement, the Constitution becomes collateral damage.

Because what would take its place? This is a question which has been repeatedly asked by the Council for the Advancement of the South African Constitution (Casac) as it seeks to promote and entrench the Constitution and its values.

This is the most fundamental question that now arises for South Africa, no matter how one tries to dress it up.

We are in a difficult political and social moment, one which is far bigger than university vice-chancellors and student leadership. And it requires measured interventions from leaders across society if we are to change the status quo, yet preserve that which the Constitution requires.

Judith February is based at the Institute for Security Studies and is a member of the Casac advisory board.