Sydney Majoko
3 minute read
7 Sep 2021
7:00 am

Maybe it’s time for South Africans to have another look at the constitution

Sydney Majoko

It looks like former deputy chief justice Dikgang Moseneke was right that when the constitution was drafted in the mid-90s, it was done with a 'Nelson Mandela in mind'.

Former president Jacob Zuma. Picture credit: Gallo Images/Sowetan/Thulani Mbele

“There is nothing new under the sun, everything that is happening now has already happened.”

South Africans who are shocked because medical parole was granted to the country’s former president, Jacob Zuma, would do well to remind themselves of that biblical idiom.

This country has been here before when a former Zuma associate, Schabir Shaik, was granted medical parole just over two years into his 15-year jail sentence. Zuma receives his reprieve two months into his 15-month sentence.

South Africa’s much-feted constitution allows this. Granted, proximity to power and access to unlimited legal resources played a huge role in both cases, but it required the constitution to have that loophole for it to be exploited.

So much has been said about how the former president has employed “Stalingrad” legal tactics and used every trick in the book to delay having to face his day in court.

But instead of being shocked, maybe it is time for South Africans to have another close look at the constitution that has been given praise the world over.

Sure, if a sick 79-year-old ex-president deserves to be released on medical parole, he should be released. But the citizenry should be satisfied the process that led to that release is the same process that any ordinary citizen in the same position would be subjected to.

Often, when people complain that South Africa’s constitution is “too liberal” and grants too many rights to people who do not deserve them, the response given is that the constitution cannot be bent to suit every case.

But there have been indications over the years that those who have deep pockets for legal representation can get away with murder.

It looks like former deputy chief justice Dikgang Moseneke was right that when the constitution was drafted in the mid-90s, it was done with a “Nelson Mandela in mind”. Now that it has been tested, it could be time to remove that Mandela idealisation and mould it to better serve South Africa right now.

It is not only the medical parole granted to Zuma that should be concerning, but also that the same constitution also grants citizens the right to choose not to vaccinate when there is a pandemic that is not only taking lives, but clogging up the whole health system.

This liberal constitution says people have the right to say “my body, my rights” but does not provide a solution for when those people fall ill and need health care in a country with a severely compromised health infrastructure.

Rights come with responsibilities. Those who opt not to vaccinate because the constitution allows it should carry the responsibility for their own health should they contract Covid.

A better way out would be to have the constitution take away rights that do not go with responsibility.

There is no problem in the constitution guaranteeing free speech to every citizen.

But if that right to free speech means that people like the Democratic Alliance’s federal chairperson Helen Zille can cast aspersions on the Constitutional Court without providing a single shred of evidence, there is something wrong with the constitution.

The right to free speech also carries responsibilities.

South Africa’s “beautiful and liberal” constitution can only better serve the country if it guarantees that people serve the jail sentences meted out to them.

It must also ensure that choosing to enjoy certain rights must carry the accompanying responsibilities.