Zuma's threats may have made the constitution less vulnerable - Business Day, 18th February 2013.

At the beginning of this month the FW de Klerk Foundation held a timely conference in Cape Town to urge South Africans to defend the Constitution.

Since judges are likely to have to keep making decisions that upset members of the ruling alliance, threats to amend the Constitution to curtail the powers of the Judiciary will never be a thing of the past. But although such threats seem to have been made with increasing frequency during the Zuma years, the Constitution, ironically, may be safer now than five years ago.

In the first place, voting trends suggest that, come the election due next year, the Zuma-led African National Congress (ANC) is unlikely to obtain the two-thirds majority necessary for most amendments.

Secondly, one consequence of all the threats has been to shake more and more people out of the complacency so prevalent in the first decade or so of ANC rule. Whereas business is often cowed by government bullying, the reverse is the case with many institutions in civil society.  In fact, more and more such institutions are playing the role of critical vigilance that helped over a long period of time to undermine the apartheid system. New institutions are being created to deal with particular threats, for example to the freedom of the Press.

Moreover, those playing a critical role are ideologically diverse. De Klerk was thus able to call together a fairly wide range of institutions, divided over many issues but willing at least to come together in a public forum to discuss defending the Constitution.

Civil society, whether in the form of groups representing particular interests or non-profit organisations with a wider mandate, is a critical component of the checks and balances that the Constitution provides. Apart from staging protests, blowing the whistle, and mobilising the Press and public opinion, these organisations can activate the formal checks and balances by litigating, all the way up to the Constitutional Court if necessary.

Though the Constitution provides numerous remedies against the abuse of power, it nevertheless has two key flaws.

The first is the entrenchment of socio-economic "rights," notably those to health care, housing, food and water, basic education, and social assistance. These rights may be enforced not only against the Government, but also against anyone else, since the Constitution binds everyone - in technical terms, it applies "horizontally".

It is disgraceful that the ANC has often been so neglectful, even callous, that it has been necessary for anyone to go to court to enforce these rights. The courts have so far been cautious in enforcement orders, wary no doubt of making decisions with wide-ranging fiscal consequences that step over the boundaries separating legislative, executive, and judicial power. But in years to come, activist judges less respectful of these boundaries could use these rights to push the country down the socialist road contemplated by the national democratic revolution.  The entrenchment of socio-economic rights may also have encouraged the prevalent culture of entitlement in South Africa. That culture is further promoted by all the entitlements contained in employment equity and black economic empowerment legislation, along with the ANC's implementation of free services and promises of more such free services - all as part of the promise of "a better life for all". In this context it is not surprising that so many people go so easily on the rampage to dramatise their demands.

The second weakness in the Constitution is that it contains a host of trade union and collective bargaining rights, but no right to work. One desirable amendment would be the addition of something along the following lines: "Everyone shall have the right to seek and embark upon employment free of artificial restrictions imposed by the State, trade unions, employer organisations, or bargaining councils." Private voluntary contract, in other words. This might then render minimum wage decrees by ministers unlawful. Also unlawful would be the behaviour of bargaining councils seeking to shut down businesses and throw people out of work.

By John Kane-Berman, CEO of the Institute.

This article first appeared in Business Day on 18th February 2013.