home Andile's Column, Featured On being a “constitutional delinquent”: Land return requires unconstitutionality

On being a “constitutional delinquent”: Land return requires unconstitutionality

By BO Staff Writer

This post first appeared on the Facebook timeline of Andile Mngxitama on 10 February:

Why do we say that if you want land return you need to be “unconstitutional” or more elegantly, become a “constitutional delinquent”? The reason is simple. The South African Constitution is anti-black. Its cornerstone is its Section 25 which protects stolen land from being returned. To ensure realization of this, whites changed the political system from being “parliamentary sovereignty”, in terms of which Parliament as the legislature was the supreme legal authority capable of creating or ending any law – as was the case under apartheid – to being “constitutional supremacy” which in turn means that it’s not Parliament that is supreme but the Constitution as represented by the 11 judges of the Constitutional Court.

The power of the Constitution is derived from its Section 1(c) and Section 2 guided by “constitutional principles” agreed to during negotiations which protect white interests. 

Here is what any process which seeks to reclaim land via the Constitution would entail:

Amending Section 25 requires 2/3rds or 66% of the vote in Parliament. But, if you were to do this then whites would take you to the Constitutional Court which, being bound by the “constitutional principles”, would strike down such an amendment.

So you would have to amend Section 1(c) and Section 2 which requires 75% of the vote – this is almost impossible even if all black parties voted in favour of it. But if you succeed they would still take you to the Constitutional Court which in turn will call such amendments a parliamentary coup and consequently strike it down.

So if you are a constitutionalist you are basically disabled to do anything to return land.

The question posed by the “constitutional delinquents” is the following: where were the 3/2rds, the Section 1(c) and Section 2 constitutional requirements and the Constitutional Court when whites took our land?

Answer that, then come and talk to us, proud “constitutional delinquents”.

Andile Mngxitama is the National Convener of Black First Land First  

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