windmills Karoo XXX  Picture: THINKSTOCK
Picture: THINKSTOCK

DOES the Constitution obstruct or support land reform? At a recent public discussion hosted by Oxfam, this recurring question was not resolved, despite the calibre of the speakers.

The issue was tackled by Bulelwa Mabasa, director at Werksmans Attorneys; Public Works Deputy Minister Jeremy Cronin; Sithandiwe Yeni, rural transformation manager at Oxfam SA; and Lubabalo Ntsholo, EFF parliamentary researcher.

As expected, the speakers disagreed sharply about the role of section 25 of the bill of rights, which is known as the property clause. However, it was remarkable how the speakers from diverse organisational and political backgrounds agreed that one of the major factors behind the failure of land reform was a lack of political will on the part of the ANC government.

Mabasa pointed out that despite the Constitution mandating land reform, the relevant institutions were consistently under-resourced. Cronin conceded that there was hesitance and confusion on the part of the government when it came to land reform. Yeni focused on how the problems of people living on communal land were absent from major legislative and policy initiatives. And Ntsholo accused the ANC of being too closely aligned with "white monopoly capital" to be serious about land reform.

Critics of the role of the Constitution tend to focus on the property clause, but it is necessary to look at the issue of political will — what is the role of the Constitution in creating this lack of political will?

For a start, political will must be demystified. Politics is essentially the struggle for and against state power, and the explanation of political will has to have at its centre the issue of state power. When it comes to land reform, the "lack of political will" means that those who want land reform lack the power to make it happen. Those who do not want land reform have the power to block it. It is its role in the distribution of state power, not the property clause, that is the biggest reason why the Constitution obstructs land reform.

The purpose of land reform is to allocate land to the landless. In SA, landless people are poor and black, and most are women. All over the country such groups have been identifying particular pieces of land that they want for different purposes. What and who are the obstacles they encounter in these struggles for land? A list of the groups who block or slow down land reform to its current pace includes:

• The ANC, which will not implement genuine land reform because the party will lose its insertion into the elite of the neoliberal capitalist system;

• State officials, whose salaries depend on keeping within the laws and rules made by neoliberal politicians;

• White land owners, who have demonstrated that they have the means to defend their ownership of the land in court and through violence, either by themselves or by renting security companies;

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• Traditional leaders, who depend on patriarchal interpretations of customs and traditions to keep control of communal land;

• Judges, magistrates, and prosecutors, whose livelihoods and powers depend on enforcing the rights of the current owners of the land; and

• The police, who use violence against any attempt by landless people to take direct action and occupy and control land.

These groups form an interlocking network that blocks any possibility of radical land reform.

The Constitution confirms all of them in their positions of power. It might not support some of the particular violations of the bill of rights that these groups regularly indulge in, but it is culpable because it supports the power they rely on for these violations.

The struggle for land reform that can put an end to the poverty, inequality, racism, and sexism associated with landlessness is in essence a struggle to defy, sidestep, curtail, and, ultimately, do away with the power of this network of elites.

Some specific provisions of the Constitution can be used to advance this struggle. But the document as a whole, as it functions in politics, is an obstacle in the struggle to end landlessness.

• Wesso is the research and policy lead at Oxfam SA