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Picture: GCIS
Picture: GCIS

The Constitution, calls for positive action to confront the apartheid legacy of poverty and disempowerment, and for building a truly nonracial society committed to social justice. Transformation contemplates an improvement in the lives of people.” — Former chief justice Arthur Chaskalson

In recent days we have seen heightened debates on the efficacy of the Constitution, propelled by minister Lindiwe Sisulu in her personal capacity (or chairperson of the ANC Sub-Committee on Social Transformation).   Several responses have come to the fore in print and on social media from ANC comrades, analysts, and members of the public. The acting chief justice has also responded.  

In a subsequent clarification, we are advised that Cde Lindiwe’s piece should be read “as [a] contribution to a conversing SA where discourse, as guaranteed in the spirit and letter of the Constitution, is underscored as a crucial tenet of our democracy.”

But there is “discourse” and then there is “attack”. Perhaps indeed this is an opportune moment to further debate our constitutional democracy, especially as we have just marked the 25th anniversary of the adoption of our Constitution.  But in so doing, we should be unequivocal about what passes as debate and what does not.

Referring to judicial officers by using crude racial tropes cannot pass off as a debate. Attacking the very institution that is to uphold the Constitution goes against the grain of everything that we wanted to change from before 1994.

Insinuating that judges who have assumed the high calling of judicial office in our democratic era are mentally colonised, is a personal attack that cannot be condoned under any circumstances. In addition, calling any Black person — whether a judge or not — a “house negro” is insulting.

Judges are required to uphold and protect the Constitution and the human rights entrenched in it and administer justice to all people alike without fear, favour, or prejudice.

In the second article, minister Sisulu says by affording adequate protection of fundamental human rights, our society can ensure that we avoid the dilemma posed by those using the “rule of law” rhetoric to cover up oppression and injustice.  

It is true that the law can be used in pursuit of evil — apartheid SA and Nazi Germany are both cases in point, as their laws were technically legal because they were on the statute book, but they were morally wrong. 

This is exactly what our Constitution set out to change. The Constitution removed parliamentary supremacy so that laws passed and any action by government is measured against the Constitution as a yardstick. The Constitution is the exact opposite of previously unjust laws, as it advances human dignity, freedom and the achievement of equality, nonracialism, and non-sexism. 

Both Cde Lindiwe’s first and second articles do not cite a single judgment by our democratic courts in which oppressive or unjust laws in general or oppressive laws based on race and sexism are enforced. 

On the contrary, judgments by our courts have brought about a much more equal society, where human dignity plays a central role.

In what is possibly the best-known court judgment in our country, namely that of Makwanyane which abolished the death penalty, the Court went to great lengths to introduce and infuse the notion of ubuntu into our jurisprudence.

It was no less than a black judge in Chief Justice Mohamed who said: “The need for ubuntu” expresses the ethos of an instinctive capacity for and enjoyment of love towards our fellow men and women; the joy and the fulfilment involved in recognising their innate humanity; the reciprocity this generates in interaction within the collective community; the richness of the creative emotions which it engenders and the moral energies which it releases both in the givers and the society which they serve and are served by.

It is against this historical background and ethos that the constitutionality of capital punishment must be determined.

What could be more African than the spirit of ubuntu? What then is the basis of criticising the very same court which has used ubuntu as a beacon for all its future jurisprudence?

In addition, court judgments like the Bhe case come to mind, where the Constitutional Court found that the Black Administration Act violated the rights to equality and dignity under the Constitution and was therefore unconstitutional.

The Court held that section 23 of the Black Administration Act of 1927 was an outdated and antiquated piece of legislation which solidified ‘official’ customary law and caused violations of the rights of black African people, mainly women and children. The section created a parallel system of succession for black Africans, without sensitivity to their wishes and circumstances.

The court then considered the African customary law rule of male primogeniture — the rule that allowed only men to inherit — and held that it discriminated unfairly against women and illegitimate children. It was thus declared unconstitutional.

Furthermore, in the Constitutional Court cases of Grootboom and Soobramoney unequivocally set the tone that the Constitution is a document that needs ensure and protect the rights to dignity and equality for all.

Most of the gains we have made as a nation since 1994 have been because of the Constitution. The Constitution and the judiciary have been instrumental in changing the landscape. Much has been realised and much still needs to be done and improved, specifically in terms of policies of government and the actual implementation thereof for the betterment of the lives of our people.

In the Soobramoney case it was stated that the duty of the courts is to test the reasonableness of laws in relation to the purpose of the socioeconomic rights. It is also within the court’s broad review powers to interrogate the other measures that the state is obliged to take. It is with no doubt that so far, the courts have done the best in this regard.

Criticism and freedom of expression are some of the important pillars of our democracy, but we need to exercise them with caution and responsibility so as to avoid destroying or paralysing important arms of state — arms of the democratic state that our stalwarts and those who came before gave their lives for.

We may not always all agree with the decisions of the courts, but any criticism against our courts should be on substance and with evidence. Sweeping statements or blanket attacks on our courts and judiciary are dangerous to our constitutional democracy.

We cannot support the courts when they rule in our favour, but then attack them as “mentally colonised Africans” when they rule against us or hand down judgments which we don’t like.

Section 165(4) of the Constitution obliges organs of state through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility, and effectiveness of the courts.

Aside from the attacks on judges, there is a pervasive narrative in our body politic which characterises the Constitution as a sell-out.

Our Constitution is largely based on the Freedom Charter. Was the Freedom Charter then also a sell-out document ? Surely not.

This “sell out” argument is further devoid of any truth. In a historical discussion paper published by the ANC in August 1988 — Constitutional Guidelines for a Democratic SA -the following guidelines, for instance, with regards to the economy, were set out:

1) The state shall ensure that the entire economy serves the interests and wellbeing of all sections of the population.

2) The economy shall be mixed one, with a public sector, a private sector, a co-operative and small-scale family sector.

On land it sets out the following:

1) The state shall devise and implement a land reform programme that will include and address the following issues:

  1. i) Abolition of all racial restrictions on ownership and use of land.
  2. ii) Implementation of land reforms in conformity with the principle of Affirmative Action, taking into account the status of victims of forced removals.

Minister Sisulu, like many others who take issue with the Constitution, mentions the issue of land as one which has been stalled by the Constitution. One is reminded of when former President Kgalema Motlanthe was appointed by parliament to chair the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change to investigate the impact of legislation since 1994. In its report, released in 2017, the panel found that land reform and restitution had been a failure, but, importantly, it found that the Constitution was not the reason for that failure.

The failure was due to, among others, poor implementation of policy, budget allocation for land reform being “woefully inadequate to bring about structural change” and issues relating to institutional and political support.

The Report of the Panel went further to say that “the Constitution provides for positive land rights in Sections 25(5), (6), (7) and (9). These are the rights to equitable access (redistribution), tenure security and restitution. These rights are not being adequately promoted, enforced and protected. Instead, they appear to be under attack from policies and practices that redirect the benefits of land reform to potential political alliances with specific elites.”

A careful reading of the Constitution today illustrates that the ANC’s Constitutional Guidelines were duly incorporated into the final draft of the Constitution. These guidelines are not of foreign input — indeed far from it. They are based on the fundamentals of the 1987 January 8 statement of the ANC on the 75th anniversary which proclaimed:

“For us, it is of especial importance that that new reality should reinforce and entrench what we are accomplishing now, in struggle: the building of a nation of South Africans. It must reflect and enhance our oneness, breaking down the terrible and destructive idea and practice of defining our people by race, colour or ethnic group. The revolution will guarantee the individual and equal rights of all South Africans without regard to any of these categories, and include such freedoms as those of speech, assembly, association, language, religion, the press, the inviolability of family life and freedom from arbitrary arrest and detention without trial. For all this, the victorious revolution demands and must ensure thoroughgoing democratic practice.”

Some 35 years later, the January 8 statement at the 110th anniversary, the governing party reminds us “the lodestars of our journey of social transformation are to be found in the Freedom Charter and our country’s Constitution and the plans developed over the years to attain the lofty ideals they espouse.”

Once we begin to distance ourselves from the Constitution not only do we define ourselves outside a dialectical process of development, but we also negate history in an unsavoury fashion.  

In the words of the late stalwart Kader Asmal — “the most important development making SA a better place to live in and to possibly love, is the Constitution, a guaranteed contract between South Africans as how to organise our public and private lives. The Constitution, the result of an unprecedented national conversation among South Africans, which together with the Bill of Rights, is the bedrock of our freedom.”

As we mark this anniversary, let us heed the call of former chief justice Chaskalson and evaluate the positive actions taken to confront the apartheid legacy of poverty and disempowerment, and for building a truly nonracial society committed to social justice.  

Let us remember that transformation contemplates an improvement in the lives of people, households and communities, achieved over time by institutionalising policies, programmes and projects to that end. 

The best way to achieve this is, in all earnest, what we should really be debating — all the more so as it is the 25th anniversary of the adoption of our Constitution.

Lamola is minister of justice and correctional services

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