Too early to tamper with the Constitution

It is far too early to conduct a review of the Constitution, and the number of amendments that have been made “should not have been rushed into”, said former minister of constitutional development Valli Moosa. Moosa, who was involved in drafting the interim constitution of 1993 which set the tone for the final 1996 constitution, said amending the fixed term of Constitutional Court judges from seven to twelve years could have been a mistake. “Today some people are saying maybe we shouldn’t have done that so soon,” he said. Moosa was speaking together with Dr Syndney Mufamadi, who helped draft the National Peace Accord of 1991, and Africa’s foremost constitution lawyer Professor Yash Pal Ghai in a panel chaired by Professor Nico Steytler at the Constitution-Building in Africa Conference held at the University of the Western Cape (UWC) on Friday, 6 September. The conference formed part of the 22nd annual African Moot Court competition held at the campus this week and hosted together with the University of Pretoria. Mufamadi said technical reviews of the constitution were to be expected “as instruments supporting and deepening the process of democratisation”. However, this did not mean the constitution should be overhauled. “You do not burn down the whole house in order to kill a snake.” There were other examples of reversal of the democratic process, he said. “We had a demilitarised approach to policing, then you have Marikana...” However, he believed South Africa’s democratic “trajectory” was still “in the right direction”. But a democratic dispensation must not be taken for granted, he warned and we needed to “remain on our toes” at all times, with expectations involving a “national discourse on how they can be met”. That the interim constitution, and the constitution which was based upon it, involved political compromise, was a criticism put forward by Steytler that Moosa and Mufamadi took issue with. Moosa said it had become a false common wisdom that the interim constitution and final constitution involved major political compromises, with the formation of the provinces and decentralisation of central government through the provinces and local governments touted as a compromise. He said one of the most important features of the South African Constitution was the importance it gave to values and principles.

“We did not fight the struggle to have six or nine or no provinces, but for human dignity and equality which the interim constitution cast in stone. Fundamental human rights – there is nothing compromising in that.”

He said people confused the constitution-making process with the political settlement process yet they were two different processes.Moosa also responded to Gai’s comments that the South African Constitution was a result of political parties, namely the National Party and the ANC, sitting together rather than a process in which citizens of the country were involved.The ANC at that point, he said, was not a political party but a national liberation movement that represented the voice of people from branch level and thus the will of South African citizens were represented at the table rather than that of a political party.Ghai, who is a Kenyan national and has advised on many constitutions, including those of Iraq, Nepal, Papua New Guinea and Fiji, said in drawing up the Kenyan Constitution in the wake of widespread election violence and political crisis following the 2007 elections there, the South African Constitution was used as a blueprint.The South African Constitution’s focused engagement on people “and their continuous engagement in public affairs” was one of the things that attracted Kenyan constitution makers.Kenya was riven with ethnic and tribal identities and the question of creating a common solidarity from diversity was one the South African Constitution dealt with, he said. South Africa has a “strong emphasis” on values and principals and the Kenyan constitution makers “copied shamelessly” from South Africa’s Bill of Rights.The devolution of power among provinces and municipalities was also copied. “We turned to your scheme of decentralisation.”But since Kenya’s adoption of its new constitution three years ago, there have been three proposals to change it, and Ghai warned against tampering with a constitution too soon, agreeing with Moosa and Mufamadi that at 17 years old, the South African Constitution was still young for the country to have a proper idea of any shortfalls it may have.