The Constitution is formally the highest law of the land, and how one interprets it is usually determinative of how it plays out in practice, regardless of what the text obviously says. Critical race hustlers understand this better than any other political faction in South Africa, and have expended much time, money, and effort on dishonestly racialising the Constitution through (interpretive) construction. We must recognise these lies for what they are.
There are three pervasive lies told about the Constitution, usually by legal academics and commentators, that increasingly influence how judges interpret the text.
These lies, particularly the first two, are believed by our highest courts. It will be very difficult, if not impossible, to convince the courts right now that these are errors in their interpretation of the Constitution. Instead, it is up to ordinary South Africans and civil society to adopt the correct, reasonable, reading of the Constitution, and in so doing pressure the courts and the legal academy to revise their positions.
The most pervasive, and perhaps most destructive, lie that is told about the Constitution is that section 9 – the right to equality – at best allows and at worst requires government to adopt and pursue racialised economic policy.
But this is dishonest. Section 9 of the Constitution does no more than provide that everyone is entitled to equal protection and benefit of the law, and that there must be full and equal enjoyment of all rights and freedoms. The State may adopt reasonable legislative measures to achieve this equality.
Notice how section 9 does not refer to demographic representivity, or a right to employment, or ownership of existing firms. It simply empowers the State to ensure that all South Africans receive equal benefit and protection of the law and enjoy the rights and freedoms in the Constitution fully. That this somehow allows government to interfere in a private enterprise and dictate arbitrary racial formulas is a profoundly obvious misconstruction.
This is more so the case when one realises that a fundamental underpinning of the Constitution, found in section 1(b) of the Constitution, is non-racialism and non-sexism. These foundational values are meant to permeate the whole Constitution, including section 9. This means that it is impermissible for courts to interpret section 9 as overruling non-racialism.
It is true, on the other hand, that there are provisions in the Constitution that deal with racial demographic representivity, but these deal exclusively with the judiciary, Chapter 9 commissions, and the public service. There is no provision in the Constitution that allows government to dictate to private firms and associations who they may nor may not hire and on what conditions.
There is a very strong argument to be made that government’s employment equity and black economic empowerment policies are unconstitutional. This is however not an argument that will readily be accepted by South Africa’s highest courts, whose judges regrettably share the same legal worldview as the critical race hustlers that peddle this myth.
The second lie about the Constitution is so obviously untrue that it is surprising how pervasive it has become. It has been said by the courts in passing, but is almost regarded as the gospel truth among legal academics, that the Constitution’s “meta-role” – that is, what all its provisions, particularly the Bill of Rights, are ultimately geared towards – is to bring about a wide-ranging (usually racial) “transformation” of South African society. This change, in other words, must happen in the social sphere, economic sphere, legal and political sphere, and the cultural sphere. Nothing in society is safe from this State-enforced transformation.
Such a position is on its face incorrect, because it is characteristically totalitarian. Constitutions and constitutionalism exist precisely to avert totalitarianism. A constitution’s “meta-role” is always to define and delimit the scope and power of the State, and it does so in favour of the liberty of legal subjects – those who live under that constitution. This is simply in the nature of constitutionalism, to the extent that even the Constitution of totalitarian North Korea – notwithstanding it being ignored – has this limitation as its inherent function, albeit not nearly to the extent of liberal democraticconstitutions like that of South Africa.
No provision in the Constitution provides or even implies that everything must be “transformed”. It has been claimed by the courts and race-hustling academics that the Constitution requires the transformation of property relations, that it requires the transformation of public spaces (like changing street names), that it requires the private sector to promote (faux-)egalitarianism, and that churches must adopt whatever the latest cultural fad is. None of this is found in the text of the Constitution, and therefore the courts and academics have to “find” it through the construction of meaning. While construction is certainly a legitimate aspect of constitutional interpretation, race hustlers do so without taking into account the nature and purpose of constitutionalism, which is impermissible.
The Constitution, in fact, stands to protect the private sphere – our social, economic, and cultural intercourse – from undue and excessive government interference. This is what its text obviously provides and contemplates. Constitutionalism stands in direct opposition to totalitarianism.
This lie is told by a whole other group of critical race hustlers. The first two lies come from those who regard the Constitution as already being a racist law; but this lie comes from those who regard the Constitution as not nearly racist enough. The first group could be called the “transformative-constitutionalists” and this group the “decolonial constitutionalists”.
The decolonial race hustlers argue that in the 1990s, when the Constitution was being adopted, Nelson Mandela and the African National Congress (ANC) “sold out” black emancipation by agreeing to a “liberal” constitution that protected the interests of the “privileged” – whites – from being redistributed in favour of the “disadvantaged” – blacks.
There is a grain of truth here. The Constitution was certainly adopted to protect the interests of someone. As discussed above, a constitution necessarily exists to define the role of the State and to help ensure the State remains locked into that framework. This is so that society can freely arrange its own affairs without government standing in the way. When the Constitution was adopted in the 1990s, it did not entrench illegitimate interests and undermine legitimate goals. It recognised the property rights of all South Africans and limited the power of the State after centuries of uncontrolled abuse. This was the first time in South Africa’s history that the majority of people finally had their rights constitutionally recognised.
The lie that the Constitution was a betrayal of the struggle against Apartheid is as ahistorical as it is simply philosophically and theoretically wrong. The ANC had by far the most influence during the negotiations to adopt the Constitution. The National Party’s negotiators, led by Roelf Meyer, did not do anything without permission from the ANC and its chief negotiator, Cyril Ramaphosa. The ANC was not outmanoeuvred or lied to. Mandela and Ramaphosa knew exactly what they were doing. The result is that we have a good, albeit imperfect, Constitution that can stand among the best of the constitutions of the world.
The first two lies in this list are already pervasive, and the third is gaining traction quickly, particularly on the back of rhetoric from the Economic Freedom Fighters. Lucid and reasonable South Africans should not allow any of this nonsense to stand. If we read the Constitution correctly, and do not get caught up in the dishonesty of so-called “thought-leaders” and obviously misguided judges, there is a good chance that the Constitution in the future might serve freedom a whole lot better than it currently does.
