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Drafters of Constitution were a little ‘starry-eyed’

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If the architects of the Constitution could do it all over again, they might constrain the powers of the executive and make public institutions stronger.

“The single biggest single problem, I think, is the over-concentration of power in the executive and in the hands of the presidents in the Constitution,” said former Democratic Party leader Tony Leon at a discussion in Cape Town to mark 20 years since the adoption of the feted blue print to democracy on December 10, 1996.

“There was very little appetite to constrain power at that level,” Leon recalled of the days when ANC leaders Nelson Mandela and Oliver Tambo were leading the seismic shift from apartheid to democracy.

“If I was asked what was one of the real problems, I would say that one,” he told the panel that included some of those who participated in the Constitution-making process.

Former Special Investigating Unit head Willie Hofmeyr said perhaps those who negotiated the Government of National Unity and those who drafted the Constitution were a little “starry-eyed”.

“Some do not appreciate the extent of the crisis at the time, the right wing was well armed,” said Hofmeyr, who at that time was a wiry United Democratic Front activist.

‘Thought put into the judiciary has paid off’

“In the starry-eyedness and the relief and the euphoria I think we underestimated the tendencies in every state for things to go wrong,” he said in reply to a question by Judge Dennis Davis, who was a technical adviser on the drawing up of the 1993 interim Constitution and the 1996 “final” version.

“We may have thought it was theoretical. But there was probably not sufficient thought into how to build constitutional institutions more strongly,” said Hofmeyr.

“The thought put into the judiciary has paid off, but for other institutions there was this implicit thing that things will be done right.

“[We thought] there is no need to have checks and balances and be transparent in appointment processes,” he said.

This was a reference to the right of the president of the country to appoint heads of institutions such as the National Prosecuting Authority simply on the grounds of their being “fit and proper”, with no specific requirements.

Retired Constitutional Court Judge Albie Sachs said although there were serious security risks from right wingers while it was being drafted, the Constitution was in no way a “sweetheart deal”.

“People think the marvellous wonderful naive Mandela got together with the pragmatic [FW] De Klerk and said to the lawyers ‘let’s have a Constitution’,” explained Sachs, one of the first Constitutional Court judges.

“We fought over the Constitution.”

People did not just want the right to vote, they wanted education and health, he said.

A ‘healthy impatience’

He felt it was a pity that the young generation was “so unknowing” about the dynamics at the time when there were armed right wingers, a military ready to mutiny and the assassination of SA Communist Party leader Chris Hani had just taken place.

He lamented people who want to repudiate the Constitution because it is now enforcing limitations.

Speaking about those who complain that change is too slow Sachs said: “I think it’s a very healthy impatience.”

He said he used to be sceptical about public institutions such as the Public Protector but is now delighted by the way they have found their feet.

Former trade unionist and now Economic Development Minister Ebrahim Patel said the Constitution had ensured socio-economic rights without having a specific paragraph titled “The Economy”.

Since it was adopted a R2.2 trillion economy has grown in worth to R4.3 trillion and the people in jobs number has increased from 8.9 million to 15.5 million people in 20 years.

[Source: News24]
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