South Africa’s first democratically elected President, Nelson
Mandela, jokingly advised that if the new democratic government does to us what
the apartheid government did, we must do to it what we did to the apartheid government.
The apartheid government ran a parliamentary democracy system. The new
democratic government has a constitution that demands the implementation of a
constitutional democracy, but its essential role players are insistent on
running a parliamentary democracy. The new democratic government is doing to us
what the apartheid government did. They want parliament to be sovereign when it
can’t be. For the sake of nation-building, we need an intervention so that we
do not have to reach a stage where we follow the wise advice of Madiba. We need
to transform our mindset about our constitutional order. Before teaching the Constitution,
we need to understand what it stands for. The Chief Justice and his colleagues
did an excellent job providing a basic framework for advancing knowledge about
the essence and meaning of this vital document.

Our
problem is that when the democratic elections 1994 were completed, everyone
tried their best to forget the terrible nightmare of apartheid. In this
process, we assumed that the prevailing culture of the apartheid system would
easily recede and that we would have a democratic culture of democracy
automatically installed in the psyche of the nation. This was a big mistake.
Apartheid colonialism and apartheid capitalism were deeply entrenched in the
minds of both the oppressor and the oppressed peoples of South Africa.

The
practices of this undemocratic system were the only things we knew and were
exposed to.

Recognising
this, the drafters of our constitution proposed foundational values that would
move us to become a constitutional democracy, and hence a department called
Justice and Constitutional Development was established. Unfortunately, this
department never focused on its constitutional development mandate to the
extent that we no longer have such a department; we now only have a Department
of Justice. This means that a new constitution was parachuted into an
unwelcoming environment. The seed can only grow if it is planted on cultivated
land. In South Africa, we have yet to cultivate an understanding and acceptance
of the essence of our new constitutional order.

In
changing and transforming our nation, we need to embrace the foundational
constitutional values in our constitution. Constitutional Supremacy is one of
the key foundational constitutional values. The other values are dignity,
equality, freedom, human rights, non-racialism, non-sexism, the rule of law,
regular elections, accountability, responsiveness, and openness.

To
transform the state, we need to embrace the doctrine that the Constitution is
supreme and that the government rules by the Constitution, and that, at the
same time, the power of government is limited by the Constitution to prevent
the rise of any tyrannical government. Lest we forget, we need to be reminded
as to why this foundational value of constitutional supremacy is vitally
important; the undemocratic and racist parliament of the apartheid regime could
decree anything to be lawful with disastrous consequences. Take, for instance,
the so-called Sobukwe law that converted the apartheid parliament into a court
of law, giving itself the power to mete out punishment as a lawmaker,
prosecutor, judge and executioner. At the end of his sentence, they decided
that he must remain behind bars, so they decreed that a man who had served his
prison sentence was illegitimately denied his release.

Our
constitution’s drafters wanted to ensure this could no longer happen in the new
South Africa. In our new democratic South Africa, constitutional supremacy,
which is asserted as one of the foundational values of the constitution, entails
that the constitution binds all organs of the state and takes precedence over
any other law. The oath of office declaring politicians’ commitment to
upholding, promoting, and protecting the Constitution means that they should
know and acknowledge that their powers as politicians are limited and
constrained by the provisions contained in the Constitution. This also means
that the judiciary no longer must be progressive and creative, claiming space
and pushing boundaries to control the power wielded by those holding public
offices, as was the case during apartheid. This control is now automatically
vested in the judiciary by the Constitution. Government must understand and
respect this constitutional supremacy as a foundation for us to create a new
ideology to serve democratic South Africa.

The
problem with this constitutional value is that it constrains the power of
politicians. How are they supposed to respect the weakening of their power supposedly
derived from the people through elections? We need to transform the mindsets of
politicians that in the new democratic South Africa, they should understand
that no one has absolute power, unlike the parliament of the previous apartheid
parliament. Politicians have to be disabused of the concept of parliamentary
supremacy. Our politicians might have hated the apartheid system but liked its
parliamentary supremacy. We need to deeply transform our politicians from the
notion of having absolute power. They cannot claim to respect the Constitution
but not embrace the idea of constitutional supremacy.

Our
current politicians, especially from the ruling party, need to understand the
constitutional edifice of our country. They must be wise rulers by embracing
and accepting the new constitutional order. If they do not transform, they will
forever be on the wrong side of the Constitution when they go to court. The
ruling party must introduce an orientation process for operating under our new
democratic constitutional order.

 

Mandla
Letlape

Thinc
Foundation

Transformation
Consultant

Author:
The Dream Delivered