Introduction to the Special Issue: ‘Citizenship (Local and Global) – 20 Years After the Constitution’

At the end of 2015, South Africa faced both a serious political and economic crisis that puts the South African Constitution and its values central in the struggles to overcome these crises; some reckon this puts us squarely on the road to a failed state.

The South African Constitution was widely hailed as one of the most progressive constitutions globally that was supposed to guide the ‘new' South Africa in its post-apartheid institutionalisation of democracy. The great care that was exercised with its writing to include human rights in the Bill of Rights, to include clauses that would bolster diversity in a very diverse nation and to include oversight mechanisms to prevent the abuse of power is well documented. The process was also consultative of the population even though it includes a number of compromises as part of elite pacts made during the transition. The question is then: how did we end up here on the eve of the 20th celebration of the Constitution with what may be a constitutional crisis? We will return to this question.

It would benefit us to look at what constitutions are supposed to do. Ginsburg and Huq (2014) single out four important aspects of constitutions that need to be considered during their drafting:

(1)	They generate legitimacy for the state.

This means that the citizens have to accept the governing regime and political order of the day as valid and as governing in the interests of all citizens. Substantial disaffection and antipathy by large sectors of the political community will impede government and erode governance to such an extent that it becomes completely dysfunctional. Violence may need to be used to ensure compliance. As Ginsburg and Huq (2014, 121) note: constitutions contain the shared values of a nation and facilitate participatory politics, which are the main sources of legitimacy.

Wiechers (2015, 258) distinguishes between legality and legitimacy, where legality is a reference to lawfulness; legitimacy goes much wider. As he puts it:

 …  it is the acceptance by government, all political actors and citizens alike that the constitution is not only the solid legal foundation upon which the state edifice rests but also constitutes the bulwark against bad government practices and well as the fortress within which all individuals, especially minorities could find their protection.

Legitimacy refers to the constitution making process as well as government behaviour and actions. When a government's behaviour contradicts the constitution it puts the constitution itself in peril because it creates the belief that the constitution cannot provide the necessary safeguards and protections it claims (Wiechers 2015, 259).

In this issue Amanda Gouws and Collette Schulz-Herzenberg, drawing on 2014 IPSOS-Markinor opinion data, show that levels of trust in political institutions are low and declining but that trust in the judiciary is high and holding steady. These findings should inspire optimism that citizens can distinguish the roles of certain institutions and support the oversight roles of the courts. Based on the findings of their data they also argue that the majority of citizens are ‘critical citizens' that will not give unconditional support to government based on their evaluations of government performance. Unfortunately citizens do not distinguish between institutions and those who inhabit these institutions. Unaccountable leaders therefore erode trust in institutions, implicitly also undermining the constitutional impetus to create strong institutions.

(2)	They channel political conflict through formal institutions rather than violence.

One of the aims of a democratic government is to create governance institutions that will channel conflict among stakeholders. Strong political institutions diminish the risk of the impact of internal strife and factionalism. A well-designed constitution can change the terms of political battles and thus lower the cost of political conflict (Ginsburg and Huq 2014, 122). Managing political conflict will also lower the stakes of political defeat. If winners dominate after taking power they may lose the political will to ‘play by the rules’, or if the costs are too high they may refuse to step down.

(3)	They limit the agency costs of representative government.

Constitutions have to be written in a way that they limit the terms of incumbents. Agency costs are related to the ‘entrenchment' of those in power and their refusal to give up power. Constitutions also have to be written in a way that would limit corruption and prevent government officials from using office for their own personal gain rather than the public good (Ginsburg and Huq 2014, 126). In this regard oversight mechanisms are central.

(4)	They facilitate the production of the national public good.

Constitutions prevail if they create better material conditions for a country's citizens. Ginsburg and Huq (2014, 128) argue that a constitution should provide for a free market, national defence and a regulatory environment in which development can flourish. Social welfare and human security should be two priorities.

The gender dimension of social welfare and human security is very important for social transformation and substantive citizenship, based on access of second generation or socio-economic rights. O'Manique and Fourie reflect on this theme in this volume by considering the expiration of the Millennium Development Goal (MDG) in 2015. The global development industry has been working towards crafting an MDG 2.0, for the post-2015 context: the Sustainable Development Goals (SDGs). There is both an explicit and an implicit gender focus in both the MDGs and SDGs. Three of the eight MDGs were directly targeted at women and girls, while there was a stated understanding that all eight goals apply equally to men and women.

Despite robust proportional representation, the 2010 and 2012 UN Reports on the MDGs cited persistent violence against women, and continued discrimination in access to education, work and participation in governance. In other words, the MDGs and their metrics appear to have reaffirmed existing gender norms and relations rather than challenging the status quo. The article surveys critical explanations of this failure, in the Canadian and South African contexts, and apply a critical feminist lens to suggest an alternative framing of gender justice. O'Manique and Fourie suggest that one cannot understand the limitations of the MDG model of empowerment for women without considering the broader socio-political and ideological contexts that shape developmental interventions and notions of ‘citizenship' globally: an understanding that is critical to the design of the SDGs if they are to transcend the shortcomings of the MDGs.

Wiechers (2015, 257) concurs with Ginsburg and Huq when he says ‘[a constitution] is the law that not only prescribes the conduct of government but also rules the life of a nation’. The Bill of Rights is the heart of the constitution because of its recognition and protection of rights and freedoms and it also binds the state to honour these fundamental rights and to provide programmes of action to realize and give content to them (Wiechers 2015, 264). In order to realise the constitution as a living document the courts are pivotal through its adjudication of disagreements with government where legislation conflict with the constitution or with agreements between citizens. Caution should be exercised so that governments do not pay lip service to the independence of the judiciary to create processes for the appointment of judges in a manner that make the judiciary subordinate to political authorities and undermine its independence (Wiechers 2015, 266).

In this issue Gibson investigates the legitimacy of the Constitutional Court. Outside South Africa, the South African Constitutional Court is one of the most esteemed high courts in the world. Inside the country, however, empirical evidence suggests that the Court has been unable to build much of a store of popular legitimacy. Some scholars have suggested that the shortfall of legitimacy is of little consequence because the Court has been able to maintain and express its independence, largely through the largess of the government. The purpose of Gibson's article is to reconsider both the empirical evidence on the Court's support and the theoretical position that judicial independence can be effectively guaranteed by the government. The article finds that confidence in the Constitutional Court has indeed grown since its first decade of operation, and that the earlier stark racial differences in support for the Court have mitigated to a considerable degree.

Confidence is not the same thing as legitimacy, even if sustained confidence in an institution may transform into institutional legitimacy, so the evidence that Gibson adduces cannot be taken to suggest that the Court has developed a ‘reservoir of goodwill' among the South African people. Still, confidence may be a precursor to legitimacy, so monitoring levels of confidence can be theoretically and substantively important. Gibson concludes by identifying some ways in which the Constitutional Court might build its popular legitimacy, at very little cost to itself or its policy-making goals. In the end, the functions of a constitutional court require it to become, on occasion, an adversary of the government. Consequently, developing its own political capital ought to be a high priority for all courts aspiring to sustainable independence.

State institutions carry the responsibility and obligation to give life to the constitution. Chapter 9 bodies inter alia such as the Public Protector, the Human Rights Commission and the Commission for Gender Equality have the obligation to protect the democratic order and protect the life of the constitution.

Wiechers (2015, 272) warns against the demise of a constitution through the violation of human rights, the abuse of state powers, administrative arrogance and the estrangement from civil society. All these abuses threaten the life of the constitution with one inevitable consequence of revolution or revolt, followed by anarchy in its wake. He also warns against those who think that democracy means taking over the reins of power by thinking that democracy means majority rule and the disregard for constitutional checks and balances. As he emphasizes the foundation of a constitution is the state institutions that need to be protected from onslaughts and insurgencies. Unless we respect the constitution as a living document it is ‘but an inane bundle of pages' (272).

Kagoro (2015) asks why citizens of so many African states reject formal institutions and why they see the only constitutional context as the ‘streets’, making themselves heard through protest. Why is there this populist upswing? He refers to ‘multiple fragilities' that undermine their human rights, mostly through economic disempowerment that has both a local and a global dimension. Formal citizenship (having rights and freedoms) do not necessarily translate into substantive citizenship in which economic freedom and ‘liveable lives' are ensured and social transformation ensues. It is in the implementation of laws based on the constitution that social transformation stands and falls. Non-implementation and incomplete implementation are of the biggest threats to the constitutional order. As Petras (2015) reminds us: it is not a constitution that fails us, but we who fail the constitution.

Kagaro argues that we cannot expect the constitutional text to do social transformation. Yet, it is exactly in the creative interpretation of constitutional texts that social transformation can be forged. As Botha in Wiechers (2015, 261) reminds us, a constitution as the embodiment of the norms, values and aspirations of the nation can only be kept alive from one generation to the next through dynamic interpretations of constitutional meaning. The meaning of constitutions is not fixed but the text is an important determinant of, for example, the Constitutional Court's jurisprudence in relation to the institutional structures and the Bill of Rights (O'Regan 2012).

In this issue Lourens du Plessis takes up the interpretation of the public role that the constitution affords religions and religious communities, their adherents and their institutions. He includes in his discussion religious institutions that are not known as churches (such as mosques, synagogues, temples and tabernacles). His article assesses the scope that the South African Constitution affords religious communities and institutions, as well as their individual members, to fulfil a public role. An overview of constitutional provisions entrenching religious and related rights is given, as well as illustrations of how these rights have been dealt with in selected constitutional court cases.

The constitution also links us to our past and serves as a ‘monument and a memorial’. As Du Plessis (in Babie 2015, 4) argues, ‘constitution as memory and promise memorializes the past, but is also a monument triumphantly shedding the shackles of what went before, and setting the nation free to take responsibility for the future’. He therefore believes that these two aspects of the constitution can exist in the same text.

In this issue Du Toit takes up the discussion of the South African Constitution as a living text that founds the new democratic state and asks about its politics of memory. By its very nature, a constitution looks simultaneously backwards and forwards: the promise of the constitution cannot be understood separately from its memory of the apartheid past, and vice versa. The past continuously gets rewritten and reframed as we always reinterpret it anew in light of current concerns and power distributions. It is argued that these politics do not fade away but rather intensify as we move further away from the constitutional moment in time. Focusing on the urgent problem of on-going very high levels of sexual violence in South Africa, Du Toit tries to capture the ways in which constitutional memory and promise function and should function in this respect. Two strategies of memory, namely the memorial and the monumental, are distinguished and applied to the constitutional promise to end sexual violence.

A constitution in the final instance determines the quality of citizenship in democratic governance. Citizenship is both a status and a practice where status refers to the relationship between the individual and the state and between citizens regulated through rights (Gouws 2005, 3). Citizenship as agency refers to participatory democracy and relates citizenship to the wider society. How citizens engage the state and each other and how they claim rights are regulated through the Constitution.

Steenekamp and Loubser in this issue state that the period of democratisation known as the Third Wave resulted in widespread democratisation in diverse parts of the world. In their study they use data from the World Values Survey (WVS) to measure five dimensions of active citizenship (considered important for democracy) in four countries of the Third Wave: Chile, Poland, South Africa and South Korea. Steenekamp and Loubser compare the Third Wave countries with two consolidated democracies (Germany and Sweden) as well as one unique case study (Turkey). They find that the oldest democracies tend to record high levels of participation as well as high levels of trust and tolerance. The newer democracies often have moderate to high scores as well, but still face various obstacles. Turkey faces the most challenges to active citizenship and democratic consolidation as it most often recorded low levels of participation and low levels of trust and tolerance.

To return to the question we pose above: the articles in this issue shed some light on the political and economic crises of South Africa. Measured by the four requirements of constitutions as spelled out by Ginsburg and Huq (2014) the erosion of trust is also eroding the legitimacy of the state and indirectly the legitimacy of the constitution. Constant threats are levelled against the oversight bodies of Chapter 9 of the constitution, and specifically the Public Protector, as well as the courts (see Booysen 2015, 112–116). The provision of the public good through service delivery has been diverted to private pockets of many of the political elite. Given bad service delivery or no service delivery at all many citizens have taken to the streets to protest against the government's non-delivery and weak performance (see Brown 2015, 13–15). It has become more and more difficult to channel violence through the institutions that need to deal with it given the hollowing out of the state by the ruling elite of the ANC, in a one party dominant state (see Booysen 2015, 95–108).

Institutions also seem to be unable to prevent strife and faction fighting inside the ruling party. The agency costs through corruption and mismanagement reached their pinnacle when President Jacob Zuma fired a capable Minister of Finance in December 2015, followed by a messy display of public repudiation and partial remedy. This made the contracting economy and declining economic growth go into a tailspin with a deterioration in the South African currency against other major currencies and a downgrading of the major South African banks to just above junk status (see Sunday Times, 13 December 2015, City Press, 13 December 2015 and the Mail and Guardian, 11–18 December 2015). Shock waves reverberated through the country, given that a pivotal minister was fired for no reason other than refusing to implement unreasonable fiscal requests from the President and without consulting Cabinet or Parliament.

According to the criteria discussed above South Africa has a constitutional crisis but the citizens are not articulating it as such because it is “too ghastly to contemplate”.

Disclosure statement

No potential conflict of interest was reported by the authors.