“The key challenge is to live the constitution. It has to be seen as the beginning of an intensive and organised project to transform society in the interest of citizens. If necessary, we should refresh the constitution if it doesn’t serve the purpose it’s meant to,” said Trevor Manuel, former Minister of Finance and keynote speaker at the opening of SASCA 2019.
“There is a focus in the constitution on the need to improve the quality of life for all citizens,” continued Manuel. “This is not a once off, we must be able to measure it. It challenges democracy to refresh itself and measure its own performance.”
“However, there is a challenge in bringing together constitutionalism and socio-economic rights. We have to understand the place of socio-economic rights in South Africa – we aim for progressive realisation and a rising floor of rights but such realisation is subject to available resources.”
“The affordability of rights has been tested by the courts on a number of occasions – for example the Grootboom and Nevirapine cases. These test which parts of the Constitution are justiciable but they are also a test of the quality of democracy.”
“There is no doubt that the qualities and attributes of leaders matter,” he added. “As well as accountability to parliament. If parliament is weak, constitutional values will not be attained. Without accountability the notion of a developmental state will not be realised.”
The 7th Stellenbosch Annual Seminar on Constitutionalism in Africa (SASCA) was held at STIAS from 18 – 20 September 2019. It was organised by the Institute for International and Comparative Law in Africa (ICLA) of the University of Pretoria and STIAS, in partnership with the SARChI Chair on Multilevel Government, Law and Policy at the Dullah Omar Institute, University of the Western Cape and the Konrad Adenauer Stiftung Rule of Law Programme for sub-Saharan Africa. The theme of the 2019 seminar was Constitutionalism and the economy in Africa. The areas discussed included Constitutionalism and the shift to a market economy; the state’s relationship to the economy; the impact of economic globalisation; and, the relationship between constitutionalism and economic growth.
Understanding state capture
The highlight of the final day of the seminar was a lively panel discussion on State capture: The private sector, the constitution and constitutionalism.
“Societies suffer abuse induced by state capture which interferes with more efficient resource allocation and ties resources to a favoured group stifling innovation, learning and entrepreneurship,” said Ramos Mabugu of Sol Plaatje University.” Effective control requires institutional reform. It is the constitutional obligation of the state to act against such unequal distribution.”
“State capture is the vulgarity of post-apartheid South Africa,” said Ralph Mathekga of the University of the Western Cape. “There is a long history of relationships between the elites and politics in South Africa. Under apartheid we had democratised corruption. Post 1994 the ANC has, to some extent, mortgaged its moral basis in the interests of pursuing transformation. We are not yet ‘after’ state capture, there is a great risk of being captured by nicer people.”
Focusing on some of the regional instruments aimed at tackling corruption and state capture, Buhle Angelo Dube of the University of South Africa pointed out: “One of the big problems is that we problematise and focus on the captured official rather than the capturer. These officials are not capturing themselves.”
“There is no universal format to fight back,” he added, “but we need a well-functioning judiciary, strong institutions and a sound legal framework. Regional initiatives can only work in environments where the judiciary itself is not captured.”
The panel members also discussed the role of civil society.
‘Is naming and shaming even effective?” asked Buhle. “People outed on social media become popular.”
“We need to mobilise society,” said Ramos. “The media have done wonders – stuck their necks out but the rest of us have not done enough.”
The papers presented at SASCA 2019 will be reviewed for possible publication in the sixth volume of the Oxford University Press series, Stellenbosch Handbooks in African Constitutional Law.
Front: Henry Gichana, Arne Wulff, Makanatsa Makonese, Charles Fombad, Edward Kirumira, Nico Steytler, Kwame Frimpong, Selina Rohr, Ramos Mabugu
Middle: Tresor Muhindo, Buhle Angelo Dube, Sherif Elgebeily, Curtley Stevens, Stephan Ollick, John Hursh, Heinz Klug, Solomon Negussie, Eric Kibet, Eva Maria Belser, Kwaku Agyemen-Budu
Back: Luman Abdulrauf, Ralph Mathegka, Zemelak Ayele, Leticia Akyeampong, Phumla Hlati, Michelle Maziwisa, Melissa Ziswa, Johann Groenewald
Michelle Galloway: Part-time media officer at STIAS
Photographs: Anton Jordaan