An article in the ANC’s influential weekly newsletter, ANC Today, argues that the Constitution has been turned against the country by right-wing elements and the judiciary and that the Constitution should perhaps be abandoned.

According to the article, the Constitution has been abused by the judiciary to promote illegality: “The Constitution might have been promulgated with the best intentions, but it is turning to be the worst piece of legislation against the masses and/or good governance. Under Constitutional Democracy, there is seemingly hostile judiciary wielding extensive powers over other arms of government. In some instances, the judiciary is even (mis)using the Constitution to promote illegality.”

A political analyst who spoke to The Common Sense off the record said that the ANC newsletter was influential and was often employed as a testing bed for new policy ideas.

The article continued: “In Constitutional Democracy, not even parliament is sovereign, and actions of the President, legislature and executive could be, and are in fact often struck down by another arm of government, i.e. the judiciary, as being ‘invalid’, ‘unconstitutional’, ‘irrational’, ‘unlawful’.”

The article contended that the balance of constitutional protections has shifted towards minorities: “It is believed that minorities, including right-wing apartheid beneficiaries, criminals and illegal immigrants, seem to be enjoying more rights and protection of the Constitution than majority [sic] of ordinary South Africans, because they win almost all cases brought before the courts against government policies and/or legislation.”

The article further held that post-apartheid policies are being rolled back in the courts: “The government’s decision to attain socio-economic transformation is always successfully challenged in courts by minorities and apartheid beneficiaries...the judiciary, especially the Constitutional Court, is lending a helping hand in that regard.”

In a direct challenge to the settlement of 1996, the article asked: “It is undisputed fact that the ANC played a pivotal role in developing the Constitution, but what if there are now compelling circumstances to change it?...We need to discuss whether Constitutional Democracy is still preferred than [sic] Parliamentary Democracy under these prevailing circumstances.”

Warwick Grey, senior editor at The Common Sense said: “Such a shift would mean abandoning constitutional supremacy, where courts can strike down legislation or executive action, in favour of a system where Parliament and the majority party has the final authority to set the rules of governance.”

As ANC support has diminished, populist elements within the party have looked to the Constitution as a scapegoat. However, it is widely held that the reason for the ANC’s loss of support is that its policies undermined the investment and economic growth necessary to deliver the jobs and improvements in living standards that motivate the behaviour of its voters.