Amending the Constitution on shaky grounds will cause illegitimacy

Removing the right to compensation when expropriating property that is currently contained in section 25 of the Constitution, will be a lethal blow to the legitimacy and stability of our constitutional order if done under present conditions. The negotiations of the 1990s which led to a constitution that not only did not contain everything everyone wanted but also contained things that nobody wanted, led to a constitutional order that is today widely accepted, and acceptable. Expropriation without compensation will change this in a very fundamental and dangerous way.

Vincent Smith MP has admitted, without a hint of shame, that out of the 450,000 submissions that have been made to the Constitutional Review Committee on the question of expropriation without compensation (EWC), the committee will only consider a “sample” 400 submissions because, according to members of the committee, it would be “impossible” to review all of them.

All South Africans, whether they are for or against EWC, should feel deeply insulted by this development. Hundreds of thousands of ordinary South Africans and civil society groups poured untold hours, effort, and resources into their submissions to Parliament, only to receive a nonchalant response from the committee telling them to get lost. And who can assure them that the committee did not first make sure a substantial part of the “sample” did not consist of submissions agreeable to their own forebegotten position?

There is no law or rule that constrains the committee’s ability to review 450,000, or even 4 million, submissions. Indeed, it is the committee and Parliament itself that has set an unrealistic and arguably unconstitutional timeframe for completing the work surrounding their report. This is the most important constitutional moment in South African history after the adoption of the Constitution itself, yet Parliament hopes to wrap it all up in under a year; hopefully in time for the ruling party to brag about it in the upcoming elections.

These Members of Parliament, who we pay over R1 million per year per parliamentarian on average, have told their constituents that they do not have time for us to complain or advise them about how or whether to amend our Constitution. For my own sanity, I will not go into how the committee has refused to allow the Free Market Foundation to participate in oral presentations, even after an extension was granted.

The adoption of the Constitution took years, a process that arguably started in the late 1980s, if not earlier, and ended in 1996. The huge amount of controversy surrounding the property rights provision also endured for years on its own. This gave all interested parties and constituencies sufficient time to elaborate their views and build a national consensus. Today, the process for chucking one of the most important parts of section 25 out the window is being rushed for reasons of political expediency, not constitutional development, and without anything resembling a national consensus.

The next step, after EWC is brought into law, will be to challenge the amendment in court. These are the arguments that will likely be made in the ensuing months and years:

- The process by which the amendment was adopted was flawed. Not enough time was allowed for public participation, or the committee acted in bad faith.

- The amendment is incompatible with other constitutional values, like the Rule of Law and the nation’s commitment to the advancement of human rights, as contained in section 1 of the Constitution. For the amendment to succeed, it will thus need 75% of the votes in the National Assembly, not the mere two-thirds needed to amend the Bill of Rights.

- The amendment is incompatible with the basic structure of the Constitution. This means that the amendment power that Parliament has does not extend to changing the identity of the Constitution; in other words, Parliament has the power to amend (that is, improve upon the existing framework), not to destroy or replace.

If none of these arguments succeed and the Constitutional Court endorses the notion that an EWC amendment is lawful, the South African constitutional state will end in practice, if not in law. This will be especially true if the amendment is adopted on the back of the Constitutional Review Committee’s disturbing bad faith engagement. If the amendment is sanctioned, the Constitution will contain a provision that is incompatible with the values that characterise the rest of our highest law, and with the nature of constitutionalism itself. It will be the end of the constitutional consensus of the 1990s. One can only hope that reason and a commitment to constitutionalism will prevail on the bench of the Constitutional Court, and the court will set EWC aside.

Government should tread very carefully in the coming months for these are uncharted waters. If it wants EWC in the Constitution to be truly harmless and legal (as the President has repeatedly said it would be), the language of the amendment will need to be specific and circumscribed to an extent we have never before seen in South African legislative drafting. But I do not hold my breath for this happening. Government’s behaviour indicates that recklessness and apathy toward the demands of constitutionalism is now the order of the day.