Former ANC President Mbeki has penned a document to the
effect that the ANC should not amend Section 25 of the Constitution in its
quest to pave way for its National Conference resolution that directs
‘expropriation without compensation’, as a land restitution strategy. President
Mbeki titles his document ‘suggestions on the draft proposals on amending
section 25 of the Constitution’, thus denoting the spirit with which the document is penned. He does not come out as being hostile to the idea of
amending section 25 of the Constitution, but instead cautions that the process
should be disciplined by the perspective on Land Redistribution in the Freedom
Charter, and the National Conference as well as NEC positions on the matter. In
the document all he managed to do was “to give the NWC a historical account of
the land discourse and the disparate ideological stances… (and) what is
interesting is that he acknowledges the existence of settler colonialism which dispossessed
both the Khoisan and the abaNtu of their lands” notes Andrew Maswanganye in a BPI
WhatsApp group chat.
Commenting on the ‘Mbeki suggestion to the NEC, Maswanganye
goes on to say, ‘he then delves into crude economic evangelism which is not
linked to redressing land injustice (the substance of the Land Question) and
therefore the building of an inclusive and harmonized society (the substance of
the National Question)”.
What his piece has foregrounded from what is interior to his mindset on the land
question might be a Sussexian economic orthodoxy that “foreign investors will
come to (South) Africa to invest … and create jobs for the densely populated
masses, and that this will then soothe their pain of poverty and unemployment
and alleviate their need for land and SA will be a great place to live in”. Maswanganyi
concludes that “unfortunately, Mbeki (may have) once more under-theorized the
cultural-emotional-spiritual-egoistical profundity of owning land in a country
of your birth, and, “sadly”, he continues, “the National Question cannot be
addressed by sidelining the devil (that is in the details) in the Land Question”.
Whilst Maswanganye raises a dimension of what Mbeki proffered
as a ‘suggestion’ to an ANC decision centers, the conclusion that Mbeki might be
out of step in his suggestion is, and arguably so, limited in its reach of the
horizon Mbeki might be looking at. Horizon looking owes its existence to society,
which desires that somewhere within its confines pure, independent,
unencumbered, and unbiased thinking and discourse on its veracious challenges
should be carried on. Society wants Mbeki-type of honesty because the pure
service of truth somewhere within its orbit will be in its interest. Having
accepted that President Mbeki came, and is gone for any possible replay as President
of the ANC or South Africa, and also exempted ourselves from interference by
the inferred power of his person, we should at the very least accept that our
past approval of him to be a first citizen must have envisaged that as an
institution of leadership we created, he was destined to function as the intellectual conscience of our politics and/or otherwise.
Past leaders should be protected and packaged as a group of
persons that should not bear responsibility for current politics because they
can bear the unlimited responsibility for the development of truths they could
not reconcile with collective positions of coalitions they belonged to. Their
outsiderness to the practical affairs of politics and public affairs makes them
sovereign humans of thinking that are already permeated with a heightened sense
of reality. Their knowledge and experience of the prism of political responsibility
can be our link with what is possible where we think everything should be
possible. Their value judgments, if they make them in the interest of the nation they once led, should be considered purely because we believe they can
suspend their encumbrances in favor of the ideal of pure national interests. In
Mbeki, we are observing a resurgence of life-as-an-institution away from the
arena of practical affairs, but in pursuit of a legacy-focused passion to empty
the self for posterity’s learning and understanding sake, without neutralist indifference.
Noting his safaris with ANC policy issues, his renewed interest in the legacy of a movement he served as history had allowed him, his successes as its leaders, his failures depending on what vintage point you chose to conclude so, Mbeki is qualified by history and experience to caution without any need to appease one constituency or another. He is a node of reason that can tower above rhetoric circumcised by ambitions to be elected or legitimised.
This piece is not penned
as a response and/or rejoinder to what President Mbeki wrote, but provides a
anchoring perspective to his call that before the ANC amend or otherwise alter
the National Constitution and the strategic posture stated in the Freedom
Charter, a thoroughgoing discussion should ensue. It seeks to address the emerging trend of calibrating anti-colonial and anti-apartheid struggle demands
that have as anchorage Land as a National Grievance to facilitate the expediency
required of society to co-exist with the ‘compromised’ political accord entered
to with the then apartheid political establishment and capital, rather than
dealing with what Mbeki refers to as the ‘ideological/political principles’
undergirding the ‘land to the people call’. This piece will explore the viability
issues that still need to be addressed within an unfolding diversity rather
than progress towards a fragile national consensus on the correctness of
restitution.
The Thabo Mbeki Argument briefly
In his rendition into the land restitution discourse,
occasioned by the 54th National Conference of the ANC to the effect
that,
(i) nationalization of land
without compensation should be one of the methods and means used by the State
to address land reform; and, (ii) such nationalization of land without
compensation should take care that it does not have a negative impact with
regard to such areas as food security, agricultural production, other economic
sectors and investment in the economy,
… the former President is fundamentally arguing that expropriation
of land without compensation is an investment disincentive and should thus be
discouraged or re-thought through. He points out the chronicled historical
posture of the ANC on land since the 1943 ANC National Conference that adopted
the Imvo za baNtu, otherwise anglicized as African Claims, to the 1955 Congress
of the People resolutions that became known as the Freedom Charter, the Africanist
versus African Nationalist tendencies that stayed in the ANC despite the Robert
Sobukwe-led ideological exodus that resulted in the formation of the Pan
Africanist Congress, and the decisive and somewhat Nelson Mandela led
retributive to restorative justice posture adopted in the 1996 National
Constitution on land as section 25 outlines.
states that,
“the present allocation … of
the surface area to … Africans as against … to … Europeans is unjust and
contrary to the interest of South Africa, and therefore demand a fair
redistribution of the land as a prerequisite for a just settlement of the land
problem”
He then goes on to show how the Freedom Charter further
defined the land distribution demand that was in the African Claims Conference
Resolution, by stating that,
“The
land shall be shared among those who work it”
In this Freedom Charter construct of the land redistribution
question Mbeki argues that variants of African Nationalism that sought to have
a path to non-racialism being preceded by a recognition of two distinct groups
of people in South Africa, (which Zephania Mothopeng characterized as) the
oppressed and oppressors as protagonists in the land restitution based anti-colonial
struggle. He foregrounds the ‘rejection of the South Africa belongs to all who
live in it’ non-racial vision that anchors the founding provisions of the
present National Constitution, by what he labels as a then in-ANC tendency of
Africanists.
In vintage Mbeki rationalization, he managed to be inclusive
of African Nationalism as a in-Freedom Charter domesticated philosophical
outlook of the ANC in a Duma Nokwean edict that “the ANC has always accepted
that it must co-operate with other racial groups, and at no stage has it been
the policy of the ANC to confine the struggle to those of African origin”.
Whilst this perspective is part responsible for ‘content which has been
developed through the years in(to) progressive nationalism which is in fact the
policy of the ANC’, its
practical expression to law, in a post-apartheid State as “South Africa belongs
to all who live in it”, became an ideological crank mechanism whose reach
connected political economy interests of an otherwise middle class constructed anti-colonial
struggle whose end state was to be enfranchisement as the lodestar breakthrough
mechanism to all other freedoms sought by a now landless African majority.
Mbeki then goes on to argue,
correctly so, and of course within a firmament of anchoring the settlement
accord intents of creating a new ‘nativity’ and ‘nationalism’ broadly captured
as ‘all who live in it, that the “National Constitution stands out as one of
the major and strategic victories of the national democratic revolution as it
spells out what kind of South Africa we want”. Without vitiating the
material conditions that the ANC found itself when it entered into the CODESA
accords; the process that instructed the constitution-making process; the manner in which the adoption of the proposed Constitution at the … Conference
in Mafikeng; and the way solemnity of it being a compact amongst South Africans
to work together in building a prosperous society based on non-racialism and
non-racialism, his assertion of societal involvement in the drafting of the
constitution is hollowed out by the constitutional democracy illiteracy prevalent
in those that lead the ANC in all its decision influencing centers. This is
more acute in many a discourse that deals with land as capital, land as a
national identity resource, and land as an ideological representation of power
migration in post-conflict democracies.
The strategic essence of what Mbeki
has penned is more about showing the various phases of the Land to the People demands
by the liberation movement and those in its ideation complexes. He points out
the historical sensitivity by the liberation movement to land restitution that is
blind of the strategic importance of its current use by bearers of title
notwithstanding how they got the title. In support of this historical sensitivity,
Mbeki cites nuggets of ideological standpoints, and shifts, within the ANC on
the land question from
the Imvo za
baNtu “contrary to
the interest of South Africa” warning, to,
the Freedom Charter shifts of
“belongs to all who live in it AND “the land shall be shared among those who
work it” as disciplined by an explanation to the effect that “restrictions of
land ownership on a racial basis shall be ended, to the
National Constitution section
25 provisions on property rights, and more acutely a provision that addresses
bearers of title as at adoption of the Constitution that ‘no one maybe
deprived of property except in terms of law of general application, and no may
shall permit arbitrary deprivation of property, to
the 54th National
Conference’s resolution that bracketed the ideological and historical
principles that had been permanently appended to the land question in favor of
the much more pronounced sensitivities of, ‘a program of radical socio-economic
transformation’, ‘giving effect to land reform and redistribution’, and being ‘guided
by sound legal and economic principles, and must contribute to the country’s
overall job creation and investment objectives’
What is also clear in the Mbeki ‘suggestion’, which
unfortunately sounds like a warning, is his characterization of the 2017 January 8 statement of the NEC Lekgotla that set the tone for the 54th
National Conference in December of the same year to the effect that ‘’(we) must
return land to the people”. Mbeki sees a contradiction between this statement
and those that preceded it, and the contradiction is not the correctness of
restitution but its apparent disregard of established postures and
sensitivities to the strategic centrality of the land question in how South
Africa imagines itself as a nation. His position on this matter, interspersed
on the discourse that led to the bracketing of the political and ideological
basis of ‘land to the people’ that became a seismic shift to the relationship of
Radical Economic Transformation and Radical Socio-Economic Transformation with
Land to the people indicates the existence of a concentrated position on the
amendment of section 25 that might in fact be the substrate to the raging
factionalism in the ANC.
His call therefore to have this matter subjected to a ‘thoroughgoing
discussion’ within the ANC and the broad democratic movement should be taken to
heed with an understanding that he might be representative of an ‘establishment’
contesting current configurations of the discourse. The ‘bearer of titles’
establishment, with its endowments and influences on general advertising spend,
and thus media order determining has unleashed, and understandably so, an onslaught
to conclude that land restitution as suggested by the in-ANC team, is a threat
and a disincentive to economic growth and recovery, as well as investment in the
economy. Despite the competing, and understandable arguments that ‘economic
recovery should be premised on economic transformation, the doctrinal shifts
amongst the ANC’s leading thinkers and ‘influential veterans’ might be
procuring for a broader national discourse on land-in-the-economy that should
curb the somewhat legitimate and aggressive economic transformationalist
impulses that might be as equally disastrous as the triumphalist march toward a
structural adjustment orthodoxy championed by the state-capital-oneANCfaction
complex.
WHAT OF THE VIABILITY OF THE SECTION 25 AMENDMENT?
As earlier disclosed, this piece seeks to explore the viability
issues that still need to be addressed within an unfolding diversity rather
than progress towards a fragile national consensus on the correctness of
restitution. One of the key shifts in the land restitution discourse and might
be determinate of its outcomes is it being “guided by sound legal and
economic principles”. In South Africa legal principles can only flow from
what established the country as a legal organization and/or arrangement, its
constitution, and anything that might ultimately qualify as economic principles
should also find legitimacy when expressed as legal and thus constitutional.
In constructing these ‘guides’ the policy complexes engaged
in the land redistribution matters, especially the amendment of section 25 of
the Constitution, should do so within what norms South Africa’s constitutional
democracy, more directly, the Constitution. The normative guidelines that
directed the anti-colonial and anti-apartheid struggle have either been
subsumed or interspersed into the National Constitution that President Mbeki declares “stands out as one of the major and
strategic victories of the national democratic revolution as it spells out what
kind of South Africa we want”. Towering this normative space is the preamble to the
Constitution which recognizes the injustices of the past, and goes on to set out overarching
national objective of ‘heal(ing) the divisions of the past, and establish a society based on democratic values, social justice, and fundamental human rights”,
from the adoption point into posterity, unless truncated by new social exigencies.
Anchoring this normative firmament is the foundational value ‘of the supremacy
of the Constitution and the Rule of Law’.
The equal on pedestal human rights dispensation that undergirds
our constitutional democracy makes all rights in the constitution interdependent and indivisible, whence no categorization or distinction in
reading these rights. This makes the state, as the custodian of the constitution, have obligatory duties on the enjoyment of all rights by all that are defined
as citizens. Introducing
the rights dispensation for the Republic, section 7 of the Constitution provides,
that “(1) the Bill of Rights is a cornerstone of democracy in South Africa.
It enshrines the rights of all people in our country and affirms the democratic
values of human dignity, equality and freedom, (2) the state must respect,
protect, promote and fulfil the rights in the Bill of Rights, and (3) the
rights in the Bill of Rights are subject to the limitations…”. Embedded in this
provisions are the duties and constraints imposed on the State in ensuring that
these rights are seen in their interrelated nature. It is the congruency of
these rights with the logic of pre-ambling the Constitution with an upfront
recognition of past injustices that recalibrate what a post-apartheid State can
and cannot do in relation to matters that required a political accord before
any constitution could be written, and Land is the cardinal of all.
Whilst the South African Constitution seems to be allowing ‘core
principles embedded in liberal democracies and social-democratic one, its capacity
to allow for the social-democratic regulation of its primal capital base,
including commanding heights of the economy, and entrenching the political
primacy of government as an agency of the state is a space regulated by the
checks and balances entrenched in its Bill of Rights. To illustrate this and in
relation to the amendment of section 25 of the Constitution, section 7(2)
provides “the state must respect, protect, promote and fulfil the rights in
the Bill of Rights”. In this provision, it will be important to find the interpretation
of what does respect, protect, promote, and fulfil mean in relation to the property
clause. It is the submission of this rendition that the constitutional law
discipline community is salivating the litigation safaris that will come in the aftermath of a decision by Parliament when the amendment must be certified. In
the absence of local jurisprudence on what respect-protect-promote-fulfill, and because
of human rights as a culture in South Africa being a chronically stranded
democratic dividend in respect of academic or otherwise ideation, international
jurisprudence is an emerging pathfinding and/or guide. The extent to which such
jurisprudence will be contextual and thus sensitive to originate and
fundamental epistemic issues instructing the South African legal system, albeit
still, an appendage of Roman-Dutch Law will be a continuous challenge of
society, and should not impact the country.
Heyns and Brand present these scenarios on the respect-protect-promote-fulfill
rights interpretation.
Firstly, “the obligation to respect
means that the State itself has a negative duty not to interfere with the
existing enjoyment of (these) rights”. This might mean those that are enjoying
the existing right of property ownership, irrespective of the history of the title,
may have a legitimate expectation that the State will respect the right
they are currently enjoying whilst engaging in the restoration of title to
those whose rights were interfered with during the ‘settler driven
dispossession era’. Such respect will be with the ‘negative duty not to
interfere’.
Secondly, “the duty to protect
places a positive duty on the State to protect the bearers of these rights from
unwarranted interference by private or non-state parties, or rather natural or
juristic persons”. This might mean the State is in fact obliged to protect the
right to dispose of title holding within what the law provides, and this can under
the legalstances only be through a sale transaction, which would have defined a
(willing) seller and a (willing) buyer. The premise of the rights in the
constitution has thus disciplined any amendment to any of the rights to the extent that there is no ‘unwarranted interference’ by private individuals, in
this case, claimants. Flowing from this, and other international instruments
South Africa has acceded to, operating outside this expectation of protection
from the State, might constitute an illegitimate act, and thus attract
sanctions attached thereto as other democracies, such as Zimbabwe, have
experienced. This interpretation might still develop into diverse meanings.
Thirdly, “the obligation to promote
imposes a positive obligation on the State to ensure that people are aware of
their rights”. This might mean the State must ensure that society knows of
these rights, how they are all respected as well as protected. The obligation
to exercise any right in defense and/or in favor of a citizen by the State
should be promoted in a way that makes the Constitution emerge as the Supreme
Law and anchoring to the Rule of Law. This promotion of rights will make their
exercise by citizens legitimate to the extent what accrues out of them is not
detached from a general expectation.
Fourthly, “the obligation to fulfill
refers to the positive obligation on the State to ensure the full realization of
the rights in question”. This means the state must ensure that everyone receives
what the rights guaranteed. In property rights terms the right of the title is a
service once offered, either out of a transaction or successor-in-law arrangements and should thus be fulfilled in terms of laws of general applicability unless
otherwise a different dispensation is proposed and differently executed.
These provisions have thus set the stage for a different platform
of contestation, a platform Mbeki might be trying to avoid by suggesting a ‘thoroughgoing
discussion’. Given the accord context, President Mbeki might in his ‘suggestions’
be on a restorative justice posture which has moved from a ‘somewhat
established’ retributive justice one. Retributive justice, although it
instructed the mass mobilization pillar of the anti-apartheid struggle optimization
process has always been a post-struggle expectations risk area that could only
be mitigated through the established legacies of law. The morality and legality
in a restorative justice posture that the new and dominant doctrinal shifts
within the ANC dictate an almost compulsory need for its leadership to marry
the morality of land restitution and the legality of property rights. The threat
posed by morality and legality being apparently conflictual on land restitution
matters might be determinate in how the interplay of a rule by law socialized political
elite with the expectation of a rule of law practice imposed by the Constitution
will unfold.
The limited space that exists between the emotionally
charged demands of land, notwithstanding it being outside criteria of those who
will work it, and the legitimate expectation of bearers of current property
rights to be protected by the State is an area that requires political
bridging. What might be at issue is the worrying capacity of Parliament to
create legitimacy of the land restitution discourse in the context of the national
question. This is compromised by the broader legitimacy of Parliament, and
arguably the ANC, to claim that they represent the accurate will of the people.
It will be the rise to the challenge by those that are in the interior of ANC
leadership, and not necessarily those elected into positions of leadership, to
work on the institutional architecture of the ANC, despite its polarized factions,
that should define ingredients required to bridge the politico-ideological
issues surrounding the amendment of section 25.
In this endeavor to have a ‘thoroughgoing discussion’, as
Mbeki suggests, the ANC should enter into the ‘discussion’ chambers
understanding that the ‘National Grievance’ nature of land might be a struggle
rhetoric nostalgia that needs to be recalibrated into a ‘land access for use’
demand underwritten by financeable instruments to create ‘communities that will
work the land’. The viability of the prevailing politico-ideological posture on
land, and given the real economic strength changes, disintegrating political
cohesion of South Africans, the not-yet aggregated impact of COVID on livelihoods,
should not shape what the amendment should ultimately achieve. The gathering
concert of popular demands for land and surges of ‘radical economic and/or
socio-economic transformation that might derail the almost elusive ‘nation building’
project should be calibrated in a concert of consensus-building on the use of
land, including the use of upward vertical spaces to levels where food production
is measured on volume to tonnage ratios.
The amendment of section 25, like Mbeki, suggested should be
the outcome of a thoroughgoing discussion on economic recovery and not be seen
as a silver bullet to the economic woes of the country. The strategic
resourcefulness of land requires a matching response of strategic thinking
whose outcome should be a conspicuously lacking strong state with adaptable
institutions that would be focused on starting primary resources-based industrialization,
and land use is a key determinant.
🤷🏽♂️A ndzi ti vulavulela
🤷🏽♂️Be ngosho nje
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