Most in former homelands enjoy dubious benefits of ‘African law’

Governing parties and leaders changing constitutions at will — or exempting themselves from adhering to them — is one of the main reasons why development has failed, public services have collapsed and instability has been the norm in most postcolonial African countries.

Constitutions that aren’t sacred — changed when they do not suit the rulers, as is the case in almost all African countries — foster a lack of rule of law, lack of accountability and lack of shared norms of acceptable societal behaviour.

African ruling parties and leaders change constitutions because they do not want to be held accountable for corruption, incompetence and violence against citizens.

National constitutions are undermined in three ways across the continent. In countries run by African liberation movements — such as the ANC, Zimbabwe’s Zanu-PF and Algeria’s FLN — the constitutions of these movements often trumped their national constitutions. The movements’ constitutions are in most cases manipulated to serve the party leaders and the elite, to make them untouchable and exonerate them from prosecution for breaking the law.

In African countries where the military, monarchies or dictators are in charge, their constitutions exempt the ruling elite from accountability. Similarly, in the group of African countries run by ethnicity-based parties and leaders, constitutions are written or changed in their service.

In African countries with large settler communities where democratic constitutions were jointly written by liberation movements and outgoing colonial or white-minority governments, when the liberation movements fail while in power they blame the constitutions, describing them as “colonial”, “Western” or anti-African.

This was the case in Zimbabwe, where Zanu-PF’s Robert Mugabe, after murdering political opponents, plundered the

African ruling parties change constitutions because they do not want to be held accountable for corruption, incompetence and violence against citizens

state and failed to deliver public services, then blamed the supposedly “colonial” constitution, which Zanu-PF had coauthored.

There have been calls from some ANC leaders, specifically former president Jacob Zuma, for supposedly “African” law to be the arbiter of their actions and not SA’s democratic constitution. And now tourism minister Lindiwe Sisulu is using the Zuma populist script as the platform for her ANC presidential campaign.

The irony is that in SA the large majority of South Africans in the former Bantustans are not under the jurisdiction of the democratic constitution, but under the jurisdiction of customary law — the so-called African traditional “law” being called for by populists — representing, in fact, a parallel state.

Although customary law is recognised in democratic SA, it is meant to be subject to the constitution and democratic institutions and laws. However, in reality it has been operating above the constitution.

In SA’s former homelands, unelected kings, chiefs and traditional leaders and their councils control communal land, negotiate mineral rights and prospective business deals without any consultation with the community required.

Any community member objecting is likely to be banned from using the communal land, excluded from any other communal income and violently punished by traditional kings, chiefs and leaders, who treat their “subjects” as if they own them, and set their own laws under the pretence of African “tradition”, “laws” and “culture”.

A case in point was when Zuma said he needed to be judged by African “law” when he built a R248m private home with taxpayers’ money while his supporters live and die in grinding poverty. More than R1.5-trillion was siphoned off through corruption by his government, and his appointment of incompetent cronies to democratic institutions, the public service and SOEs led to state collapse, factory closures and mass unemployment.

Eswatini has supposedly adopted a constitution, supposedly based on “African law”, known as the Tinkhundla system, whereby King Mswati can veto or overturn all legislation, political parties are banned and criticising the king gets one a jail sentence. Married women have the status of legal minors, domestic violence by men isn’t illegal and traditional leaders represent citizens in “parliament”.

The truth is that the attacks on SA’s democratic constitution are from leaders wanting to shield themselves from scrutiny and accountability so they can continue to enrich themselves at the expense of overwhelmingly poor Africans — failing to take responsibility for their corruption, incompetence and mismanagement.

SA’s democratic constitution, although under heavy fire for a long time from the corrupt, populists and opportunists, has considerably slowed the country’s slide into a failed state.