There can be little doubt that the question of land and its just and equitable distribution was, is and will remain a central area of struggle among any people who live in poverty and who are denied their right to participate in their own governance.
The African experience of colonialism and its characteristic marker of land dispossession has significantly sharpened our legal and intellectual awareness of the centrality of land to the wellbeing of many people, but has remained a festering wound on the psychosocial fabric of Africans in general – felt especially poignantly in southern Africa.
The southern African experience, both in South Africa and Zimbabwe, has been characterised by the manner in which the legitimate struggles of the landless masses culminated in the surrender of their moral – and consequently, their legal – right to justice.
At the centre of this surrender was the willingness of the political elites in both countries to accept that post-liberation would not be based on state succession, but government succession. Built into this pivotal acceptance of the victory of colonialism and its state form over the African people was the insult that added to the injury – namely, the devices to "protect and perpetuate the privileges acquired through unjust expropriations during the colonial apartheid years".
One of the critical devices which hampered the advancement of a just and equal distribution of land in South Africa has been the manner in which the historical claims of Africans to the land has been undermined through the political settlement and its subsequent erasure of original unjust expropriation of land.
The acceptance in 1994 of the legal right of the descendant of colonial settlers to maintain their ownership of unjustly acquired land not only trampled on the right of Africans to reclaim their land, but also – paradoxically, for a state premised on the rule of law – subverted the general rule of law that a "right cannot arise from a wrong". In other words, "a claim to territorial title which originates in an illegal act is invalid".
The ambitious politicians of the EFF have sought to out-radicalise the radicals, and have used the poverty and desperation of the vast majority to inflame tensions and to deepen the chauvinistic bent of the political landscape.
But even though an elite deal was struck that sought to erase the injustice of the past, the reality of landlessness – coupled with a deep sense of injustice emanating from the persistent and unchanging inequality and exclusion of the vast majority of South Africans, the market system, and a captured political elite in which the political party is a means to private advancement – were unable to provide any sustainable solutions that did not disrupt the privileges acquired through the political settlement.
Inevitably, and as happened in Zimbabwe, the sheer extent of the inequality – driven by expedient politicians, who either sought to hold on to state power or who eyed the prize of state capture while salivating on their Gucci shoes – ensured that the demand for land would remain an easy way to sound radical and to garner political support.
Faced with a dispossessed and alienated people who still continue to languish under a state regime that contains all the continuities of a colonial state, the trope of African nationalism, with its eloquent claims of empowerment and the reclamation of African dignity, has remained as one of the pillars underpinning the success of the ANC at the polls. Within the ANC itself, various factions have used the trope of radical economic transformation, informed by narrow chauvinistic notions of African nationalism, to disguise their strong-arm entry to the elite banquet that is the South African economy.
Recognising both this strength and weakness of the national psyche, the ambitious politicians of the EFF have sought to out-radicalise the radicals, and have used the poverty and desperation of the vast majority to inflame tensions and to deepen the chauvinistic bent of the political landscape.
Yet despite the rhetoric from both the ruling party and the ambitious politicians on its left flank, the political elites have once again conspired to inflame the passions of the alienated landless masses while leading them down the garden path. Changing the expropriation clause will not and cannot reverse the quagmire we ended up in after the 1994 capitulation.
Property rights have been affirmed and the illegal expropriation of African land has been entrenched in the legal system while the right to expropriate property in the public interest is entrenched in the Constitution. All that such a political conjurer's trick does, is open up the gates for a political elite to further enrich themselves without the constraint of a market mechanism.
This same government that today calls for a cosmetic shift of the Constitution has worked consistently to undermine the tenure and rights of millions of South Africans by claiming that the land belongs to chiefs and kings.
With or without a market mechanism, the key ingredient to resolving the colonial question remains a political one.
The ANC government and the ambitious political elite class on the left do not have the political will to disrupt the historical and contemporary hierarchy of privileges and access enjoyed by the elite, and continue to proffer solutions that are top-down interventions premised on a false trickle-down type of economics.
As an example, even where the state holds the land as custodians of the people, the injustices there continue to derive from a state regime that denies people the right to decide on their own developmental trajectories, and which still views millions of rural dwellers as subjects of the traditional leaders, rather than as citizens of the republic with rights and obligations.
This same government that today calls for a cosmetic shift of the Constitution has worked consistently to undermine the tenure and rights of millions of South Africans by claiming that the land belongs to chiefs and kings.
The Ingonyama Trust, which emerged from a secret 11th-hour deal in 1994, is an extreme example of the land policy that has ever since been promoted by the ruling ANC and which entrenches the landlessness of millions in favour of the ownership by a few. This systemic dispossession of millions not only continues the path set by colonial dispossession, but goes further than any colonial or apartheid state did, by investing ownership in a king.
But it doesn't end there. Before Parliament is another nail in the coffin of land security and the return of the land and dignity of the dispossessed – in the form of the Traditional and Khoi-San Leadership Bill. Clause 24 of this bill allows "traditional councils" to enter into deals with municipalities, government departments and "any other person, body or institution" without need to consult or attain the approval of community members as landowners.
The problem of historical and contemporary land dispossession cannot simply be resolved by a semantic rewording of a Constitutional mandate.
Yet another example would be the Mineral Petroleum Resources Development Act Bill that is currently before Parliament, which also seeks to entrench the exclusion of citizens in favour of an elite.
In short, the problem of historical and contemporary land dispossession cannot simply be resolved by a semantic rewording of a Constitutional mandate that already provides ample space for a political solution. Instead, it requires a deeper and more fundamental shift of the manner in which society is governed.
True justice and prosperity for all will most likely only be attained when we reconstruct the state away from the colonial apartheid model that excludes citizens and prefers chiefs, kings and political elites, towards a state form that includes and protects the most vulnerable of society, especially in the decisions that directly affect them.