It’s unconstitutional, stupid

Mmusi Maimane.

If you don’t vote, the Boers will come back to control us” – Cyril Ramphosa, Seshego, Limpopo Province, Nov-ember 11, 2013.

“We have, however, for the first time suffered a serious setback in a number of municipalities. This includes some metros where there has not been an outright winner. This situation represents a reversal of our democratic gains and reassertion of power by our erstwhile colonisers” – Gwede Mantashe, ANC secretary general, ANC post-election press statement, August 23, 2016.

“The change the DA talk about is a change back to the past, to the era when Milner was Governor of the Cape Colony and Kruger was President of the Transvaal Republic, where Africans and blacks in general were excluded from the seat of privilege and marginalised, merely because of their race” – Malusi Gigaba, debate on August 3 local government elections, National Assembly, August 23, 2016.

In apartheid days, the white community was motivated to support the National Party government by the ever-present spectre of the “swart gevaar” and the “rooi gevaar”.

The entire population was sold a line of bulls**t, which instilled fear that unless the status quo was maintained, the country would be overrun by Communist black people. We would experience an African phenomenon called “one man, one vote, once” and the likes of Zambia, where Kenneth Kaunda became president for life (well, almost), was cited in evidence.

As the ANC’s rising star has faltered and begun to plummet back to earth, the ruling party has resorted to a similar narrative – this time, there is a difference.

Whereas in apartheid days it was possible to maintain a system of legislation that legally enforced the demented scheme conceptualised by Daniel François Malan, and perfected by an equally demented Hendrik Frensch Verwoerd, our Constitution is written in such a way that no matter what, apartheid can never be brought back, let alone the systems of government that existed in the days of Lord Milner and Paul Kruger.

Nonetheless, the electorate is bludgeoned into submission with what amounts to little other than a barefaced lie by the ANC: that the DA will bring back apartheid if it comes to power. (Disclaimer: I am neither a member of, nor a supporter of, the Democratic Alliance.)

Like most well-written constitutions, ours makes provision for amendments, albeit with dramatically increased majorities, and rightly so. Since its implementation, the Constitution has been amended seventeen times, but these amendments have largely been of a technical nature, and thus enjoyed the support of a bi-partisan majority in the National Assembly.

Amendments to Chapter One, the founding provisions, requires a 75% majority, and all other sections require a two-thirds majority (the magical 66.67% which the ANC has only had for a single term, after the 2004 national election) in the National Assembly. In addition, amendments to Chapter One, the Bill of Rights, and any provision which affects the provinces, requires the support of six of the nine provinces in the National Council of Provinces.

Even if the DA does manage to take a majority in 2019 (and I’ll put money on it that it won’t), it will either be a mighty slim 50% plus one majority, or as happened in the recent election, a coalition of sorts, neither of which will afford the kind of majority required to make any changes to the Constitution.

Considering who is likely to be the DA’s bed partner after the 2019 election, what is the likelihood that it would support any constitutional amendment which will open the door to the return of apartheid?

But even if the majorities in question are achieved, there are provisions in the Constitution which are inviolate. If for example, an attempt was made to remove Chapter One, Article One b: Non-racialism and non-sexism, which would be essential if apartheid were to be brought back, once it had been signed into law, it would immediately be challenged in the courts, and once its gets to the Constitutional Court, it will be struck down as unconstitutional.

We seem to forget that the Constitutional Court is our apex court, which means whatever the National Assembly does is subject to ratification by that court.

That aside, does anybody really think that Mmusi Maim-ane (or for that matter any black lawmaker in a DA-led coalition government) will champion a constitutional amendment that will deprive them of the right to vote, or to seek elected office? Anybody who suggests he would, the leadership of the ANC included, who vilify him as a sellout, are disingenuous liars.

Thankfully, the provisions which prevent amendments to our Constitution that would bring back apartheid, provide equal protection against the heartfelt wishes of the ANC leadership to remove the constraints which our Constitution places on its wielding of state power. And that is something for which we ought to be exceedingly grateful.