Constitutionally speaking about the 2014 election

Media clichés should abound as contradictions are again temporarily suppressed, ideological circles squared and various straw men set up to be knocked down for the apparent edification of the voting public. What is already obvious from debates over the past two weeks, is that at the core of much of the ongoing debate will be the constitution.

Former International Labour Organisation (ILO) official and labour lawyer, Professor Neville Rubin, sums up an increasingly common criticism about politicians and the constitution: “They don’t seem to realise that we live in a constitutional democracy; that parliament is not sovereign or supreme.” Cosatu spokesperson Patrick Craven agrees this is a problem, and adds: “But Cosatu fully supports the constitution.”

He also draws a distinction between the body of the constitution and the Bill of Rights that states in its introduction that it is “the cornerstone of democracy in South Africa”. The 39 clauses of this chapter, he notes, should remain sacrosanct unless there is “an overwhelming reason” for any part of it to be changed. This is a position shared at an official level by the entire labour movement.

Yet an admittedly small and unscientific poll of trade unionists and of individuals attending a critical thought seminar at the University of Cape Town on Monday night revealed that a majority of those asked admitted to never having read the Bill of Rights. Others were generally unaware of any detail and many of the comments made in recent weeks seem to indicate widespread ignorance of this “cornerstone of democracy”.

And although all parliamentary parties pay at least lip service to the supremacy of the constitution, core rights it contains face frequent challenges. However, no party has yet advanced an “overwhelming reason” to overturn any of the clauses in the Bill of Rights.

But the ANC, in the person of secretary-general Gwede Mantashe, has recently taken — with apparently considerable cross-party backing — a position in direct opposition to a constitutionally entrenched right. He did so when he — a former trade unionist — announced that teaching should be declared, formally, an essential service.

In legal and trade union parlance, workers in an essential service may not strike without a minimum service agreement. This is because an essential service is one where its withdrawal would endanger the life and limb of members of the public. So the right for all other workers to strike is a right enshrined not only in the constitution, but in ILO conventions and national labour laws.

It took President Jacob Zuma, in his state of the nation address, to endeavour to perform a semantic somersault to extricate party and government from this constitutional challenge. He did this by redefining the legal meaning of “essential service”, announcing that while teaching was essential, there was no intention to remove from teachers their “constitutional right” to strike.

However, as a number of teacher unionists point out, constitutional rights to education are frequently observed in the breach. Clause 29 of the Bill of Rights makes it clear that “basic education, including basic adult education” is an unqualified constitutional right.

“And while everybody has the right to quality education, we still have about 300 ‘mud schools’ and schools, especially in the Eastern Cape, with 60 to 70 students to a class,” says National Professional Teachers’ Association president Basil Manuel. But it is not only educational rights that are observed in the breach: human rights campaigners and several academics have also pointed out that the whole concept of traditional leaders being part of a democratic system is a contradiction to the right of everyone to enjoy equally “all rights and freedoms”. As a result, a major constitutional battle is likely to emerge over the Traditional Courts Bill that comes up for ratification this year.

This proposed legislation seems to fly in the face of the “democratic values of human dignity, equality and freedom” espoused in the Bill of Rights. And given that unionised migrant workers from largely apartheid era-defined “tribal areas” will be affected, the labour movement may be pushed into stronger opposition.

The major parliamentary opposition, the Democratic Alliance (DA), may hedge its bets on some of these issues, but will almost certainly continue to attack trade unions and existing labour legislation as problems. However, many of these attacks appear based on a misreading or misrepresentation of the Labour Relations Act and its effects.

A prime target — and one raised at UCT on Monday — is section 32 of the LRA that refers to centralised bargaining and bargaining councils. But contrary to the claim raised then — and frequently repeated — there is no compulsion to impose a single wage rate for every worker everywhere. There is, in fact, the provision for exemptions and waivers.

As SA Clothing ad Textile Workers’ Union general secretary Andre Kriel points out, there are already 220 different wage levels in South Africa for machinists alone, over nine areas and covering location, experience and type of operation. And these arrangements accord with the provisions of the constitution.

But the biggest constitutional battle that looms in the 14 months leading up to the next election is the Protection of State Information Bill. Dubbed by critics the “Secrecy Bill”, it is opposed by almost the entire labour movement, by all the media bodies and a vast assortment of what is generally referred to as civil society.

Like so much else that challenges the constitution, it may have to be resolved in the courts. But it is worth remembering that section 1 (b) of the Bill of Rights states that “everyone has the right to freedom to receive or impart information or ideas”. And section 32 notes that we all have the right to access “any information held by the state”.