Ignorantia juris non excusat.

Don’t speak Latin?

This is a legal maxim known only to law students, Latin majors, Wikipedia, The Gods of Google and perhaps only the most determined of general knowledge gurus. For those of us who are not fluent in one or more of these dialects, the maxim translates to “ignorance of the law does not excuse”. This maxim, quite understandably, prevents a person from raising ignorance of the law as a defence when they are brought to account for violating it. A judge will not accept the excuse “I didn’t know that murder is a crime” as a valid defense. But sometimes we have to interrogate where a lack of knowledge comes from before we can make the damning value judgment of “ignorance”.

The drafters of the Constitution for example, acknowledging the importance of people understanding their rights, placed a firm duty on the government to promote all of the rights in the Bill of Rights. This duty, by the Department of the Justice and Constitutional Development’s own admission, includes the duty to educate people about their rights in order equip us with the ability to make them real.

Despite this obligation, the reality – nearly two decades into our democracy – is that to most people living in South Africa, our Constitution might as well be written in Latin or etched into the forehead of a wizard, because it is more than likely that they have never heard of it and almost certain that they have never read it. A soon to be released survey of the Foundation for Human Rights concludes that only 46% of South Africans had ever heard of the existence of either the Constitution or its all important second chapter the Bill of Rights. This is not surprising given that the same survey indicates that a mere 10% of people had ever read the Constitution or had it read to them. Further evidence of constitutional illiteracy abounds in our public discourse, with the media, politicians of all shapes and sizes, businesses and many others regularly misrepresenting the provisions of the Constitution whether intentionally or innocently.

The Constitution professes to be “the supreme law” of South Africa and the Bill of Rights a “cornerstone of democracy”. While no one will be thrown in jail for not knowing about or having read the Constitution, a society in which most people do not internalise, endorse and help interpret the Constitution seriously inhibits its own power to achieve the Constitution’s vision of creating a society based on and grounded in “democratic values, social justice and fundamental human rights”.

The Know Your Constitution campaign

The Know Your Constitution campaign is founded on the idea that knowledge is a powerful tool that can be used to develop both the thinking and values of our society and contribute significantly to the transformation of the country. It is a coalition of civil society organisations attempting to lobby government departments and Chapter 9 Institutions and coordinate civil society efforts to bridge the gap between everyone living in South Africa and the Constitution: to improve the level of constitutional literacy in South Africa.

The campaign, which is premised on the understanding that constitutional literacy is a right, was launched in October 2013 in the media, making two simple demands. First, the government should make physical copies of the Constitution easily available at public offices such as clinics, police stations, libraries and post offices in all national languages and Braille. Second, the government and the Human Rights Commission (HRC) are obliged to redouble existing efforts to ensure that the Constitution is understood and embraced by people living in South Africa in order to reverse the dearth of knowledge of the Constitution in our society.

To their credit, the media campaign caught the attention of both the HRC and the DoJCD and they and other government departments have since met with the KYC campaign to plot a way forward.

Eager to build on this progress, the Know Your Constitution campaign organized a day-long series of workshops in March at the Constitutional Court of South Africa for community workers, community advice officers and paralegals from organisations such as Legal Aid South Africa and the recently launched Association of Community Advice Offices of South Africa. These workshops were aimed at sharing critical knowledge and experience gained by the different members of the Know Your Constitution campaign through their work. They covered the Constitution and other law relevant to understanding basic education rights; the workings of government and strategies for public participation through, for instance, community parliaments; disability rights; gender and sexual violence and its legal protection; and how to engage local government on housing and basic services.

Opening this event, Constitutional Court judge, Justice Sisi Khampepe, emphasised the importance of basic education which, she noted, the Court has determined to be “immediately realisable”, unlike the rights to access to healthcare services and housing which are required to be “progressively realised”. She stressed that this is because of the central role of education in the Constitution’s goal of transforming our society. Indeed, she explained, “an individual denied the right to education is often sentenced to a life of poverty”. For education to effectively prevent this life sentence it must be comprehensive and of a high quality. After all, it is an impoverished form of education which was used by the apartheid government to suppress and disempower the majority of our country for decades. But what does a quality education, which could transform our society and people’s lives, look like?

The right to basic education and knowledge of the Constitution

It is now widely acknowledged that learners need tangible things such as desks, chairs, textbooks, food in their stomachs, toilets and transport to and from school in order to truly enjoy their right to basic education. However, civil society has paid too little attention to what it is that learners are being taught at school and how this impacts on the types of South Africans we produce. Quality education, in addition to proficiency in maths, languages and the ability to critically engage with our country’s history and current affairs, also requires equipping learners to participate meaningfully in social, cultural and political life in South Africa.

In our constitutional democracy the Constitution sets the basic conditions under which we are all entitled to live and relate to one another. It regulates countless social interactions that we have with our families, friends, employers, businesses and the government. For quality education to allow learners to meaningfully participate in society, it must provide them with an understanding of the Constitution. This education must detail the rights promised by it as an elixir to a life of poverty and a bridge to a more equal society. More fundamentally it must emphasise their relevance and importance. It must explain the various duty bearers tasked with making these promises a reality. The entire curriculum should stand on and embody the founding values of the Constitution: freedom, dignity and the achievement of equality.

This conclusion was supported by Justice Khampepe in her speech, as she stressed “the unavailability of education [renders people] unable to actuate [their] constitutional rights. Knowledge and understanding of constitutional rights is the key to unlocking this power.” There are endless examples of how people make use of the power of the Constitution once it has been “unlocked”. The well known campaigns of the Treatment Action Campaign, Abahlalibase Mjondolo, Equal Education and, more recently, the struggles of Basic Education For All, the Eastern Cape Health Crisis Action Coalition and the Siphilisa isiZwa, for example, evidence this. The Constitution contains a language of power that is sadly kept away from the majority of people in South Africa. This obstructs our society’s ability to transform.

From human-whats to human rights

A good Constitution on paper is not enough. The world is littered with the pages of beautiful Constitutions whose ashes blow in the wind after having been consumed in flames by societies who have failed to bring the ink on these pages to life. Our Constitution will not leap directly into the minds and hearts of people living in South Africa nor will it automatically create the future that it dreams for us. Knowledge of the Constitution is therefore crucial to the success of our transformative project. In the words of Justice Khampepe:

“Education about the Constitution has the capacity to transform a society and conversely, if neglected, can result in the continued neglect of human rights… Even a society with the most powerful legal system is powerless if its citizenry is not aware of its entitlements in terms of the Constitution.”

We have no reason to doubt the good faith of our colleagues in government and the HRC, but the question remains: why has the situation been allowed to become so dire? Can we excuse ourselves, government departments and Chapter 9 Institutions charged with the responsibility of ensuring a constitutionally literate population for the collective failure to do so in the first 20 years of democracy? Either way, in moving forward and working together we can do no better than the words of Kayum Ahmed, the CEO of the HRC: “some may ask whether our ailing education system can afford to spend resources on [human rights education]. The real question is, can we afford not to?”

You can almost hear the chilling sound of the 90% of South Africans who have never read the Constitution shyly whispering to each other as they read: “human-whats”? The whispers are deafening.

Ignorantia juris non excusat?

It is time to get rid of the Latin. DM

Tim Fish Hodgson is researcher at SECTION27 and works in the area of constitutional literacy. He tweets on @TimFish42. Tawana Nharingo is a Students for Law and Social Justice Fellow at SECTION27. SECTION27 is a member of the Know Your Constitution campaign, which includes more than ten civil society organisations and the Human Rights Commission. For more information on the campaign contact Tim on [email protected].

Photo: Constitutional Court judge Sisi Khampepe (Picture: Werner Beukes/SAPA)