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From the flames of looting to democratic regeneration

- Tracy-Lynn Field

Over the past week, democratic constitutionalism and the rule of law have undergone a massive stress test.

The power to determine the outcome of this stress test can never lie in the efficacy of the police services or the defence force. It lies with the choice of the people of South Africa.

Apocalyptic. This is just one of the words used to describe the destruction of property and tragically, life, that has ensued in the wake of the mad outburst of collective energy in South Africa over the past week.

Whether you choose to see the blockading of roads and burning of trucks that have throttled critical supply routes and the violent razing of shopping malls and warehouses as a form of protest, a coordinated strategy of economic sabotage, or simply the unsurprising response of a population seething under the harshness of life in one of the most unequal societies in the world the impact is the same: shock, disbelief, despair, trauma.

Perhaps most fearful is the thought that what has gone up in flames and lingered for a moment in a searing pall of black smoke is the hope of South Africa’s constitutional democracy itself. Unless we stop the violence, unless we bring in more troops and declare a State of Emergency, some have said, our underlying democratic order — instituted with such hope and fanfare almost 30 years ago — is at stake.

And this is true. Over the past week, democratic constitutionalism and the rule of law have undergone a massive stress test, caught between those who wish for a broad-ranging and thoroughgoing destruction and breaking down, and those who wish to continue to struggle forward. But the power to determine the outcome of this stress test can never lie in the efficacy of the police services or the defence force. It lies with the choice of the people of South Africa. All 58 million or so of us.

In the weeks before the eruption of the worst violence of South Africa’s democratic history I had been painstakingly writing an academic article about democratic sovereignty and the possibility of transformative change. To do this, I engaged with scholarly debates about “transformative constitutionalism”.

Mirroring the material and visceral struggles that have played out on the streets this week, this debate is polarised: On the one hand, “constitutional abolitionists” see the 1996 Constitution as a betrayal and argue for a wholesale overhaul to the philosophical, historical and cultural basis of the South African governing order. On the other, “constitutional optimists” are faithful to the Constitution itself as a moral, political and jurisprudential lodestar for South African society.

Neither position is correct, however, because the moral and political lodestar is the South African people itself, the demos of self-governing equals who came into being through the Constitution in a quest to rule themselves. While the demos can be guided by constitutional values and the incremental and accumulating constitutional jurisprudence of the courts, or by the much older values of ubuntu and other occluded epistemologies, it is the choice of the present generation of South Africans that matters.

With the flames of looting starting to die down, what emerges from the ashes is that the vast majority of South Africans choose regeneration over destruction. Through their actions and reactions, physical and verbal, the majority of South African people across racial, gender, ethnic and class lines are exercising their constituent sovereign power to say (reflecting back the words of an exhausted President Cyril Ramaphosa): “This is NOT us.”

A WhatsApp message this morning from a friend who has been in the thick of the conflict in KwaZulu-Natal says it all: “We have not slept since this started. Now we pray for peace and a miracle. We are resilient people. Let’s hope they are done and we can start to rebuild.”

We are a resilient people.

As the people who are now inspiring hope and courage get to work on mopping-up operations and help those at the coalface of the devastation, it is worthwhile to recall why the South African democratic constitutional order was hailed as a miracle. It was a miracle because there was no pre-existing basis to talk of a South African “people”; we were a mishmash of different races, classes and ethnicities with vastly conflicting worldviews. We were bitter enemies driven apart by walls of fear.

The naysayers of South Africa’s experiment in inclusive democracy have been quick to give up, pointing to the democratic deficit associated with the drafting of the 1996 Constitution and the way it was bound to the terms of a negotiated settlement, the continuing and even deepening inequalities that the constitutional order has failed to address, and the immense challenges that still lie ahead. But they have underestimated the extent to which the South African people are being knitted together and are coming into being through our collective experiences of triumph (Rugby World Cup!) and suffering (looting, Eishkom, Day Zero, and the days-of-our-lives State Capture Commission, to name but a few). 

The South African people choose regeneration and hopefully, when the next election rolls around we will remember those who affirmed protest, but called for restraint and those who preferred the way of destruction. 

Affirming democratic regeneration does not mean we don’t need change or that we should not be urgently interrogating the effectiveness of our democratic institutions to stem the looting culture that has bedevilled our country’s progress for so many years — at all levels of society, in government and the private sector and across all lines of difference.

We need to find ways of holding accountable those who grab without regard for others and who thereby destroy what is in the common and public interest. To do this we must use all the forms of governance that a system of self-rule allows, including protecting functioning systems of customary law. We are resilient people, but we need leaders who will take this kind of change forward.

We are a resilient people. We have gone through a lot, but we somehow always come out on the other side. May the flames of democratic regeneration burn bright in our country. South Africans, we can do this thing.

Tracy-Lynn Field is Claude Leon Chair in Earth Justice and Stewardship, and Professor in the Wits School of Law. This article was first published in Daily Maverick.