IMRAAN BUCCUS: Why the EFF and MK are attacking the constitution

Jacob Zuma’s MK party and Julius Malema’s EFF claim the constitution is an obstacle to dealing with poverty, achieving land reform and building a more just economy. This is patent nonsense. The constitution does not mandate a “willing buyer, willing seller” policy to achieve land reform, for instance.

The reason land reform has failed in many respects is a lack of political commitment, not any flaw in the constitution. It is easy to see why some people in the ANC falsely blame the constitution though — doing so lets the party off the hook for its own governance failures.

However, we do need to ask ourselves why the EFF and MK have a shared interest in attacking the constitution on the basis of patently false claims. After all, as opposition parties it is in their interests to blame the ANC rather than to help it shift the blame elsewhere.

With MK the rationale seems clear. Its leader and a number of other key people in the party face serious legal troubles, so delegitimising the rule of law is in their personal interests. Another part of that rationale is that many of the people associated with the party — and before that the “radical economic transformation” faction of the ANC — accumulated considerable wealth through illegal means such as outright corruption or mafia-style shakedowns by so-called business forums. They want to be able to continue to accumulate wealth in this way, so attacking the rule of law is also in their personal interests.

It is no surprise that people in the ANC who are at risk of facing the legal consequences of corrupt behaviour, such as Zweli Mkhize, are making common cause with MK. It should not surprise us if ANC deputy president Paul Mashatile expresses similar sympathies in time given the allegations that have been made about his business dealings and lifestyle. 

The EFF’s anti-constitutionalism is a little more curious. On this matter, as with so many others, the party has flip-flopped. At one point it demanded that Zuma be held to account for his alleged crimes but it now supports both Zuma and MK’s attack on the constitution. The party’s leaders must be well aware that the constitution is no actual barrier to transformation, so their about-turn to attack the rule of law must be for purely strategic reasons.

Of course, there is evidence in the public domain of serious corruption by EFF leaders, most notably the VBS Mutual Bank scandal. But the party could also have decided to make common cause with MK on this matter because it sees the party as its ticket to future power in light of the fact that the EFF has not been able to grow its support. It may well have realised that the only way it will be able to gain power in future is by hanging onto the coattails of Zuma’s party.

Unfortunately, in an unequal society such as SA in which millions remain trapped in poverty and where this is still largely determined by race, the fact that liberal elites, and white people in general, are so pro the constitution works to delegitimise it in the eyes of many of those who remain excluded from access to wealth and opportunity.

There is a paradox here. A document that is largely in support of restitution and social justice is loved by the former beneficiaries of apartheid, while parties that claim to represent the excluded, and win votes from them on that basis, are vehemently opposed to the constitution.

For those of us who — while not naive about the powers of the constitution or any other legal document — see the rule of law as a vastly better option than Zuma’s proposal to remove all restraints on our leaders and to place traditional leaders above the rule of law, it is necessary to make sure that the constitution is used as a pro-poor instrument that drives transformation.

Constitutionalism must prove itself as the best option for all, including the poor, and certainly better than the ghastly prospect of kleptocrats being given free rein over public budgets.

We also require a sustained challenge to the relentless misinformation that is now being circulated, especially in KwaZulu-Natal, by MK-aligned actors. Many people consume social media rather than traditional forms of media, and this space is now packed full of conspiracy theories.

A real effort needs to be made to create more space for rational discussion about the law, how it is used by various forces, and ways to make access to it more widely available.

• Dr Buccus is a political analyst and consultant.