A moral code is premature, a legal code could help
Long before South Africans even consider the luxury of a national moral code (something the nation has done without since time immemorial) it is first necessary that we embrace a foundational legal code that legitimately regulates our behaviour and interaction, properly and reasonably.Some thought, or hoped, that we had found the answer in this regard when, after negotiations spanning the years between 1990 and 1996, we finalized a state of the art progressive Constitution that was endorsed by the representatives of the overwhelming majority of our people and enjoyed the input of over 2 million citizens. It is a magnificently legitimate "grundnorm" which envisages a non-racial, non-sexist democracy under the rule of law in which the tenets of the Constitution have to be respected by all as our supreme law. Its multi-party form of government, with the separation of powers between executive, legislative and judicial branches, sets up checks and balances on the exercise of power including all the bells and whistles of the Chapter Nine institutions such as the Public Protector and the Human Rights Commission. Our Bill of Rights, which the state has to "respect, protect, promote and fulfil", is the envy of the world. The rule of law is entrenched as a foundational value and the protection of property is enshrined in the Bill of Rights. Special powers to promote the achievement of equality and land redistribution abound and a future with dignity and freedoms aplenty is put in prospect for all by our Constitution.
Unfortunately, it now appears that our Constitution is the product of a political compromise; one in which all involved are equally unhappy with the outcome of their extended negotiations. Observe the talk-show callers around 2/2/10, lamenting that their representatives in the transition to democracy were sell outs, whether they were referring to FW or Mandela. Observe too the lip service paid to the Constitution by our current crop of politicians and by the public administration.
Even more unfortunate is the policy decision of the governing alliance to cling to the tenets of its "national democratic revolution". These tenets are completely inconsistent with the supreme law of the land. Consider a hegemonic future in a one party state in which power is concentrated in the hands of the deployed cadres of the rulers (not governors, note) without exception and without limitation. That, in essence, is what the non-constitutionalists in the ANC led alliance are working towards.
While the jousting, between the values and principles of the Constitution on the one hand and the strategy and tactics of this "revolution" on the other, continues, we have no hope of getting to first base on the law and even less hope of devising a moral code as our national glue.
Perhaps the "national democratic revolution" should be put to a referendum. Or abandoned.
Paul Hoffman SC
March 11th 2010
