South Africa

Towards an active citizenry: bringing the Constitution to the people

By Tim Fish Hodgson 30 October 2013

This article sets the platform for a six-week Know Your Constitution* campaign for access to constitutions, in which civil society organisations engaged in constitutional literacy will share our experiences on the pages of the Daily Maverick, highlighting the importance of access to constitutions to our work. The campaign will culminate on 10 December, the 17th anniversary of the official adoption of the Constitution. Our message is clear: the people of South Africa have a right to constitutional literacy which includes a right to access to the Constitution itself, a right which, nearly 20 years into our democracy, the Department of Justice and Constitutional Development is failing to deliver. By TIM FISH HODGSON.

The Constitution is a powerful document. However, it is not self-enacting. Its power emanates not merely from the words on its pages or its own assertion that it is the supreme law of our land, but the social compact that it represents. An extraordinary 1,753,424 public submissions were made to the Constitutional Assembly during its inclusive drafting process. Over and above this, in the words of Zwelinzima Vavi, “the Constitution was not just written in the Constituent Assembly, it was written in the prisons, in the struggles for freedom and equality, in the organisations built to conduct this struggle. The Constitution is a reflection of the wishes and demands of the people.” Legitimate at its conception, its continuing legitimacy is reinforced by its transformative potential: it demands the continuous and drastic improvement of the lives of the poor and vulnerable.

Properly understood and seriously taken, the Constitution requires and empowers our government to dramatically transform our country. It does not, however, leave the crucial project of transformation to the whims of the government of the day. True to the Freedom Charter’s emphatic demand that “The People Shall Govern!” it equips the people of South Africa with the tools with which to do so: ours, we have been reminded by the Constitutional Court, is a participatory democracy. It is crucial to the success of our constitutional democracy that the people of South Africa, who are the lifeblood of the Constitution, embrace this transformative project and participate meaningfully in our society to ensure the effective and expeditious realisation of the rights in the Bill of Rights.

All of this is, however, assumes access both to the Constitution and to an understanding of its importance and power as a tool for the pursuit of social justice. Our transformative project and people’s ability to govern are undermined if we do not have access to the Constitution and information that is required for the meaning of its provisions to be parsed. The plethora of human rights which are afforded to “everyone” by the Constitution will ring hollow if they remain the preserve of the legal professionals, policy-makers, legislators and other members of the highly educated elite. People cannot possibly enjoy and exercise their rights in Court – or perhaps more importantly anywhere else – if they do not know and understand them. Quite clearly, constitutional literacy is necessary for the effective realisation of all constitutional rights.

Whilst the rights in the Bill of Rights are carved into the giant wooden doors of the Constitutional Court, they are not emblazoned across the sky for all to see. The reality, as the Constitutional Court has noted is that “a large number of people … may not be aware of their rights.” So, whose responsibility is it to ensure that South Africans are constitutionally literate?

A right to constitutional literacy

The Preamble to the Constitution indicates that the Constitution was adopted so as to establish a society based on “social justice and fundamental human rights” and “free the potential of each person”. To accomplish this, the Constitution places a positive obligation on the state to “promote” all of the rights in the Bill of Rights. This obligation is fortified by a 2011 United Nations General Assembly Resolution, which states “everyone has the right to know, seek and receive information about all human rights and fundamental freedoms and should have access to human rights education and training”. Moreover, the African Charter places a positive obligation on parties “to promote and ensure through teaching, education and publication, the respect of the rights and freedoms” and “to see to it that these freedoms and rights … are understood.”

In addition at least three specific rights in the Constitution compound this general obligation. First, the right to dignity in our Constitutional democracy requires that we are equipped with the capacity to make informed, autonomous decisions and effectively participate socially and politically in our society. This is near impossible without a base understanding of the founding principles of our society. Second, the right to basic education, consistently with Article 13(1) of the ICESCR, requires that our education system produce constitutionally literate learners because the purpose of education is to ensure the “full development of the human personality and the sense of its dignity”. Third, the right to access to courts is undermined if, unaware of our constitutional rights, we cannot even begin to consider calling on the protection of courts who are the ultimate guardians of these rights.

The Department of Justice and Constitutional Development (DoJCD), which is tasked with constitutional development, holds the primary Constitutional obligation to promote the rights in the Bill of Rights by ensuring that a comprehensive plan is put in place to ensure that the gap between people and their rights is bridged. It is however not alone in this obligation, the Human Rights Commission is constitutionally empowered “to educate” and explicitly constitutionally mandated to “promote respect for human rights and a culture of human rights”. A collaborative interdepartmental approach will also be required to instill a culture of constitutionalism and establish a constitutionally literate South Africa. The Department of Basic Education in particular will have a crucial role to play in curriculum refinement and development to ensure that our education system produces constitutionally literate learners.

A right to access to constitutions

One of the most fundamental obligations in terms of the right to constitutional literacy is an obligation to provide people with physical access to constitutions. The government has a responsibility to ensure that each and every person who wants a Constitution can obtain one easily in any of our eleven national languages. To accommodate people living with disabilities, large print and braille Constitutions should also be made available. As in the early days of our democracy, constitutions should again be made available upon request at post offices. This should be extended to police stations, public libraries, clinics, schools and other widely and easily accessible, frequently used locations. In addition, the government should create and proactively widely distribute an abridged, explained, plain language version of the Constitution, containing at least the Preamble, Chapter 1 (Founding Provisions) and Chapter 2 (the Bill of Rights).

The importance of ensuring that people have access to Constitutions as a stepping-stone towards a constitutionally literate population cannot be overstated. It is our collective experience as civil society organisations that, even with our resources and administrative capacity, Constitutions are nearly impossible to obtain in any significant quantity, if at all. It is of profound concern that we are informed by employees of the DoJCD that after recent “changes in management” the number of constitutions the DoJCD prints every financial year has been reduced from 50,000 to 20,000. When DoJCD stock runs out, we are referred to Government Printing Works who sell constitutions at what, seemingly ignorant of the socio-economic environment, is described as the “minimal cost” of R20 per copy.

Moreover, the Constitutions which are sporadically made available by the DoJCD are almost exclusively in English. The dearth of Constitutions in our other ten national languages is so severe that most of members of the Know Your Constitution campaign – a group comprising social justice activists, university students, learners, legal professionals and legal academics – have never or seldom seen a copy of the Constitution in a language other than English. None of us has seen a braille or large print Constitution. Employees responsible for the distribution of Constitutions at most provincial departments of justice and constitutional development indicate that they have either never received or seldom receive constitutions in languages other than English.

From constitutions to constitutional literacy

Mere access to constitutions will not ensure a constitutional literate South Africa. The DoJCD must begin to take leadership in the area which compromises half of its mandate: constitutional development. The DoJCD’s 2013-2018 Strategic Plan correctly acknowledges that its constitutional mandate includes putting into place “legislation and programmes” that “promote constitutional development”. Despite this acknowledgement, not one of the five priority programmes listed on the DoJCD’s website and detailed in the Strategic Plan contains any substantial focus on programmes aimed at fostering a culture of constitutionalism and a constitutionally literate population. The Strategic Plan simply asserts that “there is a growing awareness of the rights of the people, as contained in the Constitution.” A better starting point would be to admit the dire need for constitutional literacy programmes and emulate the heroic efforts made by the Constitutional Assembly to popularise the drafting process and the early commitment of our first democratic government. In 1998, various governmental departments and ministries, in conjunction with the Human Rights Commission and members of civil society, produced a hefty National Action Plan for the Protection and Promotion of Human Rights. An updated plan of this nature is sorely needed today.

In the production of this plan and in working with the government to produce a constitutionally literate society, we would do well to remember the prescient warning of Nelson Mandela, prior to the constitutional negotiation process:

“If we want the values behind a Bill of Rights to become part of the culture of our people, it is important to recognise, that the authority of these values is not ultimately vested in the constitution as such, nor in the power of the state, but rather in the people who at a certain time in history committed themselves to a process under the rule of law and according to a certain set of principles.”

The principles in the Constitution do not belong to members of Parliament, the national executive and the judiciary. They belong to us. We as a people can only continuously recommit to this set of the principles, useful and empowering as they may be, if we are allowed access to our Constitution in which they have been written down. Without that, a culture of constitutionalism is a lofty dream and the Constitution is worth little more than paper that it is now, sadly too seldom, printed on. DM

*The Know Your Constitution campaign is a coalition of civil society organisations united by our common belief in the importance of access to constitutions and constitutional literacy. It includes the Constitutional Literacy and Service Initiative, The Socio-Economic Rights Institute, SECTION27, Constitution Hill Education Project and Afrika Tikkun. We welcome new members. Follow these organisations on Facebook and Twitter and look out for our articles on the pages of the Daily Maverick in weeks to come.

Photo by Reuters.

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