It was like a script from the TV series Prison Break. All you need to do is swap Lincoln Burrows for Sudanese President Omar Al-Bashir, Michael Scofield for South African President Jacob Zuma and make the setting South Africa and not the Fox River State penitentiary. The problem, this escape has far deeper consequences. It undermines the Constitution, the supreme law of the country, which provides the legal foundation of its existence. In this piece, Anthea Jeffery argues that the ruling party is shifting decision-making away from the foundation of the Constitution to that of the Freedom Charter, which is a document that was largely drawn up by white communists and reportedly approved by Moscow prior to its adoption 60 years ago. – Stuart Lowman
By *Anthea Jeffery
The long-standing propaganda campaign around a document called the “Freedom Charter” is set to reach new heights this week, with 26th June 2015 marking the 60th anniversary of the charter’s adoption.
The propaganda surrounding the charter has been pervasive from the start. The charter is supposed to reflect the spontaneous suggestions of ordinary people across the country. It is also supposed to have been adopted by popular acclaim at the “congress of the people”, a gathering of some 3,000 individuals in Kliptown (Soweto) on 26th June 1955.
In fact, however, the document was largely drawn up by white communists and was reportedly approved by Moscow prior to its adoption. In addition, the multi-racial Liberal Party refused to take part in the Kliptown meeting because it saw that the South African Communist Party (SACP) was largely in control of the event.
Many of the charter’s ten clauses nevertheless reflect the deep grievances of the black majority at the pervasive racial discrimination of the time. Particularly important here are provisions calling for equality before the law, freedom of speech and other civil liberties, equal education, an end to the pass laws, and the lifting of racial restrictions on land ownership.
These clauses were crucial in helping to give the document legitimacy. However, there were other key clauses in the charter that went beyond apartheid injustices and reflected the strong influence of the SACP.
One of these clauses says: “The mineral wealth beneath the soil, the banks and monopoly industry, shall be transferred to the ownership of the people as a whole”. Another clause states that “all other industry and trade shall be controlled to assist the well-being of the people”. A third adds that: “All the land shall be re-divided among those who work it to banish famine and land hunger.”
The president of the African National Congress (ANC), Chief Albert Luthuli, disliked these economic clauses, which he thought “too socialistic”. But Chief Luthuli was banned and confined to Groutville (Natal), so he could not attend the Kliptown meeting and had little choice but to accept the charter when it was presented to him as a fait accompli.
By 1980, the 25th anniversary of the Kliptown meeting, the charter had almost completely been forgotten. So the banned ANC made a big push to revive it, as a key part of its endeavours to counter the strong growth of two important black rivals: the Black Consciousness movement (which had sparked the Soweto revolt in 1976) and Inkatha (which already had three times more members than the ANC had ever enrolled).
Fast forward to 2015, and the ANC is again making a big push to promote the charter and, in particular, its contentious economic clauses. The ruling party also seems to regard the 60-year old charter, with its Cold War connotations, as more important than the country’s negotiated Constitution.
The ANC regularly describes the charter as its “lode star” and its core guide to policy decisions. Earlier this month, President Jacob Zuma described the document as “the ANC’s bible”.
By contrast, the ruling party has repeatedly white-anted and undermined the Constitution. It has done so, among other things, by overlooking its prohibitions of racial discrimination and cadre deployment, flouting its emphasis on equality before the law, and disregarding court judgments (most recently on the need to keep Sudanese president Omar al-Bashir inside the country and so help hold him accountable for genocide). Increasingly, the Constitution’s safeguards for property rights are also being put at risk.
The ICC may well be crap, but SA can always pull out. But how do we get the ANC back to respect the rule of law & constitution? #Bashir
— Max du Preez (@MaxduPreez) June 23, 2015
The ANC’s current emphasis on the charter reflects the expanding influence of the SACP. The SACP has never stood for election or won a single vote in its own right, but known present or past members of the party nevertheless make up some 40% of the current Cabinet. Increasingly, it is the SACP that determines the content of ANC policies – and finds the charter a useful fig leaf in doing so.
Since 2012, in particular, the Zuma administration has mounted an incremental assault on the property rights of all South Africans. It is opening the way to land nationalisation by re-starting the land claims process, while seeking to limit the size of commercial farms and to vest all agricultural land in the “custodianship” of the State. Earlier this year, it also tabled yet another damaging and unconstitutional Expropriation Bill.
Much of this multi-faceted assault on property rights is being justified by the ostensible need to “re-divide the land among those who work it”, as the charter says. Yet the country is already two-thirds urbanised and only some 8% of South Africans want land to farm. In addition, many of the new laws adopted or in the pipeline go far beyond land and allow the Government to take property of virtually every kind.
The Expropriation Bill, in particular, empowers the State to take ownership and possession of land, movables, and other property without ever having to prove the constitutional validity of the taking and in return for less than adequate compensation. This is clearly contrary to the Constitution, but helpful in advancing the economic clauses in the charter.
Instead of blindly following the failed socialist prescriptions of a long outdated document, the ANC should recognise the Constitution as its “bible”, uphold all its provisions, and urgently implement the market-based reforms increasingly vital to investment, growth, and jobs.
* Anthea Jeffery is the head of policy research at the Institute for Race Relations. She is also the author of People’s War: New Light on the Struggle for South Africa and BEE: Helping or Hurting?
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