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South African Constitution - WOWA few days back an article appeared in the newspaper The Star - South Africa titled "Cherish our constitution". In it the authors press forward the notion that it is necessary for South Africans to have access to the Constitution and the Charter of Rights. Should South Africans fail to do so, several problems will ensue. Let's take a look at some of them.

THE FIRST PART

…knowledge of rights is a necessary condition for exercising and protecting those rights.

Which is very funny indeed because according to the law, ignorance of the law cannot be used as defense. From which we can conclude that ignorance of one's rights cannot be attributed to losing said rights! Which means that it is unnecessary to protect those rights in the first place! Of course, this is all astronomically stupid, but then again, who said that laws make sense? Ah…yes…politicians did.

Furthermore, why should South Africans need protecting their rights? Isn't politicians' job -the representatives of the peoples' job- to determine which rights their representatives will or will not have? But if the representatives represent the people, as it is supposed to happen in a democracy, representatives cannot go against the will of the people who they represent. Therefore they cannot revoke any rights and therefore South African rights are safe, whether they know about them or not. Right!

We, the people of South Africa, must engage in constant evaluation and interpretation of the constitution.

Why must the people of South Africa engage in constant evaluation … of the constitution? To evaluate simply means to verify if something is still fit for purpose. The question then shifts to, fit for purpose for whom? We sincerely doubt that there are two South Africans with the exact same goals. But if this is so, how does fitness for purpose get determined? By majority vote. Majority vote from whom? From South African representatives… which are supposed to represent all South Africans. Fair enough, now, how exactly does a representative represent two South Africans with opposing points of view? Are they allowed to split their votes? 15% yes and 85% no for representative XYZ? As they cannot do so, any vote that representatives cast will not represent what many of their representees' desires therefore, is their vote still valid? Who are they actually representing? The point is that as the Constitution is a one-size-fits-all document, it is perennially doomed not to fit most people; constant evaluation is utterly pointless.

Also, why is that the South African constitution requires constant…interpretation? If we assume that Social Contracts are valid (which are not - see Social Contracts Are A Scam) then the Constitution being the supreme document of the land is also the supreme contract. But contracts are written to be understood. They are clear prima-facie (at first sight). Nobody in their right mind would agree to a contract they don't understand. Even more considering this contract to be "the" contract of the law. Constitutions are not supposed to require interpretation. But let's go a step further. Let's assume that Constitutions are so complex that they require interpretation. Fair enough, then let's apply an almost universal legal principle in contract law: when in doubt the benefit of the doubt must be assigned to the party who did not write the contract. In this case, if there is any interpretation required, the benefit of the doubt must be granted to South African people, since they did not write the Constitution. Which negates the need for interpretation -or the Constitution for that matter- in the first place! What's the point of having a Constitution if every time there is going to be a difference of opinion (i.e. always) the verdict must always go to the people and not to the government? We must remember that a Constitution is there to guarantee peoples' rights against governments taking them away, not against other people. If people break other people's rights, they are punished by laws other than the Constitution.

If we do not, the constitution will be disregarded or, worse still, manipulated by those in power to maintain, increase or abuse their power.

Hummm… but didn't we just make it plain that democratic representatives cannot, by definition, go against representees' wishes? If what the authors say is true, then South Africa is most definitively not a democracy… although their government claims it is! So… South Africa is then a "special" type of democracy where the will of the people can, is and will be disregarded. Got it.

Alarmingly, less than 10 percent of South Africans have read the Bill of Rights…

And the interesting thing is that South Africans are doing just fine! Wouldn't it be because regardless of what is or isn't in the bill of rights the government essentially stays away from peoples' lives? Thus making any Bill of Rights mute and pointless? And if this is the case, why should South Africans bother reading the Bill of Rights or even having one in the first place? Insurance against government? Noooooo… that can be right…we all know that governments are goooood….

After all, the constitution itself is a product of extensive public consultation and engagement – almost 2 million independent submissions were received from members of the public during the drafting process.

Good for South Africans, now let's analyze the paragraph. Please note the use of the word consultation which means to "ask for advice" and not "to receive orders". Also, please note the use of the word submission, which indicates a process of "petitioning" not a process of "giving orders". And so all this extensive public consultation is nothing but smoke and mirrors. Politicians wrote the document without orders from their representatives. Furthermore, considering that South Africa had about 20 million voters when the constitution was first approved, 2 million represent only 10% percent of all voters. Hardly a majority not even by "democratic" standards!

THE SECOND PART

All this pseudo-legal and nonsensical diatribe is to be expected from people who have been educated in a socialist system. What is really shocking is not this article but the response of the public to it. A few samples:

  • Further, the Constitution is premised upon freedom, liberty and dignity. Private property and the ability to decide one's own life is a key element to those ideals. Without private property, freedom, liberty and dignity are non-starters. Yet our own Constitutional Court has decided property must be viewed through the lens of public law not private law! The State is gradually being elevated above the individual by no less than the Constitutional Court. Especially when it comes to finance - the Constitutional Court will carry out the most ludicrous leaps of logic to save the State. Observe how, when it comes to tax, you have effectively no rights. No right to be proven innocent exists in tax. This is a non-derogable right in a State of Emergency, i.e. it cannot be removed - even in the most dire situation South Africa finds itself in. except tax.

WOW! Right on target!

  • Toilet paper ........
  • Our constitution is like the morning star (as the joke goes) dim, distant and ready to disappear at any second.
  • The constitution is s joke
  • ALL South African children are taught the basics of our Constitution, and then they watch the complete disregard thereof, by the President.

We have a winner!

  • Wot the price of scrap paper?
  • ALL these laws, are reduced to toilet paper, by the Cadre
  • ..... bog-roll or pulp-fiction, are more useful.
  • Ja, sure. "One of the best in the world" we hear often. So explain why it doesn't protect us agianst Nkandla-gate and many other corruption cases? Nice to have a Public Protector, but it doesn't mean anything. The PP is wasting our tax money further as her reports can and is ignored. Thanks for our wonderful Constitution!

It is really refreshing to see people realizing what the Constitution (any Constitution) really is. Even more considering this coming from people who only 18 years ago had no rights at all. This is precisely why we are firm believers in our theory of political evolution (see Political Systems Lifecycle). Each country, each group of people evolves at different speeds. Most will evolve slowly but it would seem that a few ones (such as South Africans) are evolving at an accelerated pace. This is indeed good news. Utter disappointment in a political system is a pre-requisite for political evolution and luckily enough South African politicians are doing the best they can to discredit themselves as fast as possible. Not good for them but good for South Africans and good for us!

Of course, South Africans are not yet there on the verge of political evolution. Many of them still believe that the Constitution can be "fixed" but at least they express a very healthy dose of disbelief. Compare this against the beliefs in "developed" countries such as Germany, US or Japan where the Constitution is sacred. It would seem that hardship teaches people not to believe in Bull Shit when they smell it. Complacency, on the other hand, teaches people to extend their arms and demand "more" from the government while holding their breath due to the overwhelmingly putrid smell in the air.

CONCLUSION

This Constitutional issue in South Africa is common throughout the world, and particularly acute in new democracies. This is good news indeed because this means that people are evolving politically at an accelerated pace. Furthermore, this indicates that they are passing down to their sons and daughters their own disbelief thus neutralizing socialist teaching from government-mandated schools.

You may, of course, choose not to believe this. Fair enough, that's your right. But then again you can either be honest with yourself and try to solve the conundrums we outlined above or lie to yourself. The first option is insoluble therefore you will be an honest person living perennially in crisis. The second option leads to an unreal life. Either way good luck to you. You are going to need it.

Note: please see the Glossary if you are unfamiliar with certain words.

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