President Cyril Ramaphosa on Tuesday night announced that the ANC plans to go ahead with expropriation without compensation.
Ramaphosa explained that the ANC reaffirms its position that the Constitution provides for radical transformation both of society and the economy, and that a proper reading of the Constitution enables the state to effect expropriation of land with just and equitable compensation and also expropriation without compensation and in the public interest.
The public hearings, according to his statement, have now drawn attention to the need to make this explicit in the Constitution.
The ANC will, through the parliamentary process, finalise a proposed amendment to the Constitution that outlines more clearly the conditions under which expropriation of land without compensation can be affected, he said.
This echoes the EFF tabled, but ANC amended motion, and the ANC`s 54th Congress report that saw expropriation without compensation emerge as one of the key mechanisms to give effect to land reform.
The statement, according to news reports, sent the rand plummeting, ignited Twitter and made sure that journalists, analysts and commentators are aware that this is going to be a marathon year of speculation and surprises.
The explicit mention that the ANC now supports a constitutional amendment as part of the parliamentary process raises some points to consider. A constitution is not a holy document, but it contains a set of ideals that provides a guiding function when legislation is drawn up and interpreted, and how decisions need to be made.
The Bill of Rights, specifically, is important in this respect. A bill of rights, when written, is meant to be a lasting document. It is for this purpose that the language of a bill of rights is not so detailed and technical as the language of legislation. Being less technical and open ended, the expansive language allows for interpretative possibilities that corresponds to changing circumstances. Legislation promulgated in terms of the Constitution, provides the details. If the ANC is already of the opinion that the current Section 25 allows for zero compensation, then the details as to under which circumstances, and what land, should be done in legislation.
As a framework provision, Section 25 merely sets out parameters on the general requirements that the State must adhere to when it wants to, amongst other things, expropriate land. The expropriation itself is not done in terms of the Constitution, but in terms of legislation promulgated in line with the Constitution.
What is being underplayed is that expropriation, with or without compensation, is not land reform in itself. Expropriation without compensation is a mechanism of acquiring land, and as such is a step in a longer process of settling people on land. Other parts of the process are identifying suitable land for redistribution, identifying beneficiaries, determining mechanisms that will indicate who will get what piece of land for what purpose, and then of course, the details of post settlement support.
Many who are opposed to the constitutional amendment are therefore not opposing land reform itself, but are questioning expropriation without compensation as a mechanism of acquiring land for land reform. These details got lost in the land hearings which were reduced to the binary question: Should the Constitution be amended or not? But details don`t make good 5-word slogans for populism and support.
What does the road ahead look like? If we accept that the ANC can garner enough support for expropriation without compensation on its terms in Parliament, amendment legislation must be drawn up to amend the Constitution. The normal legislative-making process will then take place, which includes public participation that is not a mere box ticking exercise, but participation that is informed and inclusive. That legislation needs to be voted on in Parliament and a two-thirds majority have to vote in favour of it. Some people argue that since it affects foundational values of the Constitution, a 75% majority is needed.
But let`s assume that this long process is concluded (and this won`t be before the 2019 elections – making laws is not making sausages), then what? Legislation might need to be promulgated to give affect to the amendment. Even if that is not necessary, all that still does not guarantee that the government will keep to its constitutional commitments as contained in the then newly worded Section25.
Expropriation as the sole prerogative of the State means that nobody, not even the courts, can force the State to expropriate. And nobody but the State, can expropriate. Getting access to land will therefore still depend on the State actually pulling up its sleeves and doing the work.
The Italians have a saying, fare come i gamberi which means to move like a shrimp. To move, but to move backwards, especially in times of danger. Land reform has been painfully slow for various reasons already adequately diagnosed. There is a real need to address the injustices of the past, exacerbated by the slow pace of land reform. Most South Africans agree on this. But it needs a holistic approach that addresses the whole system that is land reform. Between expropriation with compensation and expropriation without compensation lies a whole range of other conversations we are not having, and that the ANC is not addressing.