President Nelson Mandela said, “I am not a saint, unless you think of a saint as a sinner who keeps on trying.” Meaning that he too could err. None of us should therefore make a disingenuous attempt to undermine his hitherto unmatched leadership credentials on the basis that he erred in one way or other respect, as if he ever held himself out as a person who is immune to committing mistakes.
And none of whatever errors he might have made can in the very least detract from the profundity of his contribution to the essence of practical ethical and selfless leadership. I believe that generations to come, particularly those who genuinely care about fellow human beings, will ceaselessly drink from Madiba’s well of wisdom-laden and ethical leadership.
Let me try to explain what the lecture as I see is all about:
Having been challenged to share some reflections, on “Constitutionalism as an Instrument for Transformation”, I think here lies the challenge. Once I have shared what Madiba has been saying about Constitutionalism and the critical role that a Constitution is intended to play, just keep on asking yourself, what is it that I am going to do here after?
When you are in the company of thieves of criminal and you only say, “you know it’s not right to be a thief, criminality is wrong”, but do not focus on who the thief is, and how they go about stealing and what needs to be done to them, they will be joining you, they will come up with profound statements in relation to just how wrong theft and criminality is.
So, the purpose of this lecture ought to be what is wrong with our society? How did it come about that 25 years down the line we still have people without homes, so many people, everywhere you go, we still have racial discrimination, ethnicity, gender discrimination, even tribalism?
How did it come about that we still have to contend with a situation where in the high echelons of the corporate sector, because it is rare to come across a woman, or black person, we celebrate when we find just a handful. Something is fundamentally wrong and we’ve got to confront it and come up with practical steps to give practical expression to constitutionalism in South Africa.
Now I thought the best way to do justice to the topic is to quote generously from Madiba’s own reflections on constitutionalism as the instrument of transformation, and we begin:
On the occasion of the signing of the Constitution of the Republic of South Africa in Sharpeville, on 10 December 1996, President Mandela had this to say:
“As we close a chapter of exclusion and a chapter of a heroic struggle, we reaffirm our determination to build a society of which each of us can be proud, as South Africans, as Africans, and as citizens of the world. As your first democratically elected President I feel honoured and humbled by the responsibility of signing into law a text that embodies our nation’s highest aspirations.”
So, the Constitution is an instrument for building; building a society within which none would have a reason to be ashamed of his or her state of affairs.
So, if you want to know what kind of a South Africa, Africa and the global village “we the people of South Africa” desire and plan to have, examine our Constitution.
But let me say at this early stage, very little is going to be accomplished for as long as we allow our people to be ignorant of their rights in the Constitution.
You can’t fight for what you don’t know.
You can’t fight for what you don’t touch.
It’s almost as if we seek to take advantage of the ignorance of our people by not doing anything.
The greatest facilitator of sustained injustice is keeping people ignorant of what they are entitled to, that is why the smaller version of the likes of Long Walk to Freedom were impermissible for an African person, a black person to possess during the apartheid era, because it was known once you have been enlightened by what Madiba had to say about justice and equality, you were going to take action on a massive scale.
Now the need to know extends to constitutionalism because knowledge is power.
Nelson Mandela went on to say:
“Today we cross. Let us now, drawing strength from the unity which we have forged, together grasp the opportunities and realise the vision enshrined in this constitution. Let us give practical recognition to the injustices of the past, by building a future based on equality and social justice.”
We need to be strong and united as the people of South Africa. We never used to be united as black and white people of this country as you know, but unity is essential for the realisation of what President Nelson Mandela refers to as “the vision enshrined in this Constitution”.
We have to “give practical expression to the injustices of the past”.
And anybody who says, please stop blaming it on apartheid and colonialism, is being mischievous.
What we cannot do is to blame it all on colonialism and apartheid, but most of the problems that we have to contend with right now are a direct consequence of colonialism and apartheid.
It is therefore absolutely necessary that we never stop talking about colonialism and its sister neocolonialism, and apartheid, because then, you leave those who have always believed in this crime against humanity to be comfortable and to shape it in a sophisticated way, in such a way that it doesn’t quite look like discrimination, when in fact, it is.
We will be betraying the legacy of Madiba if we don’t give practical expression to the injustices of our past and the question is what are those injustices?
Racism that is still alive.
Gender discrimination and exclusivity where it matters the most, in the corporate sector. It’s an injustice.
We all have the responsibility to build this country.
We have a great country, good people.
Let us not waste time polarising society.
Let us not waste efforts and energy, seeing ourselves as white and black people as if we are enemies.
Let’s focus on principle.
Let’s confront and expose any institution and anybody who practices discrimination and let us look for practical steps to put an end to these injustices;.
It really is a shame that 25 years down the line, we still have so many of our people suffering as much as they do, it is a shame that inequality has become sharper during our constitutional democracy than during apartheid, and check who is at the top?
Madiba went on to say on that occasion of signing our Constitution into law:
“Let us nurture our national unity by recognising, with respect and joy, the languages, cultures and religions of South Africa in all their diversity.”
We need unity now more than ever before.
It has got to be something that each and every one of us worries about on a daily basis and the simplest way to start is to seek to understand or to know more about another.
As a South African, you have got to want to know other languages, we can’t just be learning English, you’ve got to know TshiVenda, isiXhosa, if you are committed to building the unity that we so desperately need and without which we will be as stagnant as we have been, or relatively stagnant as we have been for the past 25 years; you’ve got to know the languages, know the cultures, seek to understand the situation of your fellow South Africans.
And we must allow, in line with what Madiba said, others to practise their faith freely, there is an incredible intolerance for certain faiths. It’s almost as if the Constitution doesn’t provide for them. Where there is intolerance, there will be conflict, and where there is conflict there is bound to be disunity, and once we are divided whatever it is that is our enemy will take full advantage of us.
Highlighting what could be achieved through the Constitution, Madiba also said:
“Above all, let us work together in striving to banish homelessness; illiteracy; hunger and disease. In all sectors of our society – workers and employers; government and civil society; people of all religions; teachers and students; in our cities, towns and rural areas, from north to south and east to west – let us join hands for peace and prosperity. In so doing we will redeem the faith which fired those whose blood drenched the soil of Sharpeville and elsewhere in our country and beyond. Today we humbly pay tribute to them in a special way. This is a monument to their heroism. Today, together as South Africans from all walks of life and from virtually every school of political thought, we reclaim the unity that the Vereeniging of nine decades ago sought to deny. We give life to our nation’s prayer for freedom regained and continent reborn:
“God bless South Africa;
Nkosi Sikelel’ iAfrika;
Morena boloka sechaba sa heso;
God seen Suid-Afrika”
The Constitution is a powerful weapon against homelessness (section 26) of the Constitution says so, against illiteracy, (section 29) of the Constitution says so, against hunger and disease (section 27) of the Constitution says so.
So, whatever business, labour, government and civil society does, must take account of the need to get more people to enjoy these benefits. We all must work together to accomplish this assignment.
People died in Sharpeville and elsewhere in the country to end these inhumane conditions. The Constitution was signed there to remind us of these realities. The signing of our Constitution was meant to turn the Constitution into a monument to the heroism of the people of Sharpeville and all those who fell and suffered for our liberation struggle.
So, we must never allow ourselves to forget what many people like Nelson Mandela endured for me to be standing here as Chief Justice, to address a crowd like this, confident that there won’t be any tear gas coming my way.
Anybody with a functional conscience must seek to identify his or her responsibilities as contained in our Constitution.
If you are indifferent because you occupy a position that pays you well, if you are indifferent to the plight of the people in Diepsloot and elsewhere in the country because you are comfortable, you live in a suburb, know that you are a traitor; and you are a traitor of our Constitution.
You are a traitor of Nelson Mandela.
You are a traitor of any other person who suffered for us to get to where we are.
This is so because the Constitution places a responsibility on each and every one of us, regardless of age to contribute towards ending the injustices of our past. Sometimes I wonder, are they of our past? And sometimes I lament why we don’t have colonialism and apartheid in our Constitution because they would have served as a constant reminder of exactly what it is, we mean when we say there is a need to give practical expression to the injustices of our past.
To the leaders of faith-based organisations, Madiba himself said on the occasion of signing our constitution, that we have a national prayer to say we must pray.
The way to transform our society using the Constitution is partly by praying:
God bless South Africa;
God Bless Africa;
God protect our people.
We should not be ashamed of praying.
We should not be made to be ashamed of prayer.
When you pray, you are not insulting Bishop Mutula – you are making a request for your people, whether it will be granted or not is a different story.
We need institutions to actualise assured aspirations in the Constitution, and one of them is the judiciary.
Articulating the critical role that the judiciary has to play in transforming our society through the Constitution, Madiba said at the Constitutional Court in 1995:
“The last time I appeared in court was to hear whether or not I was going to be sentenced to death. Fortunately for myself and my colleagues we were not. Today I rise not as an accused but on behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy. It is not just our blessings that we give to their work, confident as we are in their integrity and commitment to justice. It is an institution that we establish – South Africa’s first Constitutional Court.”
He went on to say:
“We owe thanks to the Constitutional Court which has proved a true and fearless custodian of our constitutional agreements. One of the things one discovers when coming into office is that there is no shortage of rubber stamps. South Africans did not establish this court to be another rubber stamp. We expect you to be creative and independent. We expect you to be true to the oath you have just sworn.”
We dare not forget that Madiba was so committed to the fundamental human rights that are embodied in our Constitution that he was prepared to die in the pursuit of that idea.
I’m reliably informed that they took a decision that if the death penalty were to be imposed during the Rivonia Trial, they were not going to appeal.
And the question that confronts you and I that I will come back later to is what are you committed to?
What a shame, if just because of that publicity, that criticism from one source or the other; or the risk of being fired, you become a participant in stealing the resources that are supposed to help the poor.
What a shame to know that some of us, even if you see the most heinous of crimes being committed, just because a criminal threatens you, you would rather have that little girl suffer; it becomes none of your business, you’d rather have gangsters terrorising our people just to protect your own skin.
Out of respect for Nelson Mandela, and the Bill of Rights that he knew of before it found space in our Constitution and his commitment to transform society, our society – and societies the world over we must stand up, and stand out against criminality, regardless of who is committing it.
I think I speak on behalf of my colleagues here, I see my colleague (Edwin) Cameron is here and (Albie) Sachs, when I say at no stage did the Constitutional Court and the broader judiciary seek to protect the individual members of the court at the expense of principle. We have stuck our necks out. No wonder the criticism has at times been as severe as it has been against us.
What are you doing to ensure that this Constitution works for every South African?
Therefore, because of the critical role that the Constitutional Court or the judiciary, in general, has to play in transforming our society through the Constitution, we owe it to this country and generations to come to make sure that we don’t have a compromised judiciary.
We have got to be interested, to know how people get elected to office.
You have got to observe carefully; you have got to watch carefully how people are being interviewed because there are times when you can tell certain people are being shielded from being asked critical questions; and the question is when that happens who is doing it and what is the agenda?
How can you have an independent and competent judge or magistrate who when questions are sought to be put to him or her, people build a scrum around him or her? Any competent judge or magistrate, or a candidate aspiring to be appointed to that position must demonstrate his or her capacity by fielding the toughest of questions. But if now people were caucusing about a certain candidate, you must know there is an attempt to corrupt the judiciary.
You must know, there is an attempt to capture the judiciary and a captured judiciary will never be able to use the Constitution as an instrument of transformation, because any captured member of the judiciary will simply be told or will know in advance, when so and so; and so and so are involved, we better know your place.
Or when certain issues are involved, well the decision is known in advance, so and so can’t lose. Be on the lookout, be vigilant and be forceful in making uncomfortable anybody who seeks to establish a pliable judiciary.
Madiba himself said:
“Our constitutional democracy hinges on the judiciary. We should guard the judiciary jealously.”
Another way of doing so is being very critical of us when we do wrong things.
Madiba said, one of the things we needed to do as judges is give reasons for our decisions that an ordinary man can understand.
You must be worried when you read a judgment and you are struggling to make sense of it. Judges were enjoined by Madiba and we know, and ought to know that partly we account to our judgments to the public.
Now, if you write in such a way that the public doesn’t understand what you are doing; what kind of accountability is that?
We don’t write for lawyers, we don’t account to lawyers only, we account to every South African citizen.
So, you must watch us carefully.
Who do we associate with the most?
Who are we uncomfortably or indecently friendly to and check judgments when those people are involved?
Does it make sense?
Madiba said, on the occasion of inaugurating the Constitutional Court: “You must be true to your oath don’t be rubber stamps.”
We are the ones who administer an oath to the President, the Deputy President, Ministers, Deputies and Members of Parliament. And we do so expecting them to be loyal to their affirmation of office.
How hypocritical can we be if we expect people before they take office, in line with the Constitution to commit to doing what the Constitution demands of them when we don’t do the same thing ourselves; so please watch us closely, otherwise our Constitution is gone.
I am not saying there is anything wrong with the judges by the way. No. I have absolute confidence in us, but complacency can set in; and remember we wield extensive powers as the South African judiciary.
I’m tempted to say I’m not aware of any judiciary in the world that wields the kind of power that we do. There is almost nothing we cannot do in the instrumentality of the constitution.
Now power corrupts, and absolute power corrupts absolutely.
Madiba said speaking to the Constitutional court judges:
“Constitutionalism means that no office and no institution can be higher than the law. The highest and the most humble in the land all, without exception, owe allegiance to the same document, the same principles. It does not matter whether you are black or white, male or female, young or old; whether you speak Tswana or Afrikaans; whether you are rich or poor or ride in a smart new car or walk barefoot; whether you wear a uniform or are locked up in a cell. We all have certain basic rights, and those fundamental rights are set out in the Constitution.”
One of those basic rights is found in Section 24 of our Constitution which guarantees us the right to an environment that is not harmful to our wealth or well-being. A protected environment preserved for future generations, free of pollution and ecological degradation.
But our environment is polluted, Al Jazeera conducted a documentary and interviewed a geologist, a South African, who said I cautioned these people about the dangers and they said it was too expensive.
Too expensive? When human life is involved? And what did we say, because I’m not the only one who saw it; but I think I’m speaking now for the fourth or more time on that incident; the reason that there is no change is that even when there is something shocking that the Constitution demands of us to contribute towards rooting it out, we mind our own business.
We say nothing about it.
Who is talking about that highly toxic material? What are we doing about it? And if nothing is done, it means others elsewhere have been embolden to dump more and more toxic material.
Our rivers are toxified as we speak right now. Our dams, our oceans, who is saying what about them? In view of what just happened to Mozambique, to India, to America as a result of the love of money, the worshiping of money that doesn’t care about fundamental human rights?
We should not in our criticism focus only on the failures in government. We must criticise this government, it is ours after all; but I think we treat other key players in our society with children’s gloves. What have they given us? Or what did they give to shut their mouths up?
When you speak to some of the players that are really damaging our society or resisting change in line with the Constitution, it is those who were previously oppressed; who will be speaking against the need to enforce the Constitution. People celebrate their directorships and free shares and being set up in businesses at the expense of whatever Constitution is about.
I am not saying that everyone who is set up in business is a cooperator or has been set up by those who resist change; but ask yourself the question, when fundamentally wrong things happen in our society, except in government why are the fire brands of yesteryear quiet?
They would never have kept quiet before they had something to eat.
I heard my sister Thuli Madonsela say, there is a saying that when there is something in your mouth you can’t speak. What has been put in their mouth to shut them up?
We have to make it very uncomfortable for anybody who ever claimed to care about the wellbeing of the people of South Africa to be turned into a mouthpiece specially capacitated to resist transformation through the Constitution, using all sorts of smart sounding words that mean nothing.
Our fauna and flora, rhinos, elephants and so on, our trees; much treasured trees are being ravaged with boldness. What are we doing about it?
Because the kind of pollution you see in India will soon come here if you allow people that have an insatiable appetite for money in government and in the private sector, to do as they please on the future of our children, the Constitution forbids that conduct and it is you and I’s responsibility to raise these issues sharply.
I love this document and I rely on it whenever occasion arises that I address issues that have something to do with justice, which many don’t understand.
You can’t talk about justice and not touch on just about everything there is to deal with in our society.
It’s just that when you say ecological degradation, people say no that is politics.
It’s not politics, its human rights. So, we as the judiciary should speak with clarity on these issues; that’s what Madiba said, when he said this to Constitutional Court judges:
“I am sure that I am speaking for all of [the people] when I say that the basic reasons for your decisions should be spelt out in a language that all can understand.”
And he said:
“The authority of government comes from the people through the Constitution. The people speak through the Constitution.”
We should never allow any people elected or appointed by people to discharge certain responsibilities on their behalf to load it over them.
They suddenly forget that it is to the people of South Africa who elect and to whom the power belongs that we all must account.
We must never allow anybody to sweet talk us into accepting anything that we don’t understand.
The people of South Africa whether educated or uneducated are our bosses, that is why we as the judiciary of South Africa hold a session every year now where we invite the public to come and ask us any question which we are not prepared for, and why? They are the ones who pay us.
They are the ones who employ us.
So never make anybody who exercises state power or uses the people’s resources in one capacity or the other think they can do as they please with what does not belong to them; because if you do, transformative Constitutionalism will never set in; we will stay here.
The situation will virtually be the same, another 25 years.
“Our constitution rests on three fundamental pillars: Parliament, the Government, and the Constitutional Court. Each has its specific role to play. He said, take away or undermine any, and you weaken the whole structure. That is why your independence is guaranteed in the constitution.”
No Arm of the State must be undermined or treated as a junior partner in the governance of the State. That is an unconstitutional attitude. They are equals of the state.
Addressing Leaders in the Free State on 17 December 1994, President Mandela said:
“Freedom should not be understood to mean leadership positions or even appointments to top positions. It must be understood as the transformation of the lives of ordinary people in the hostels and the ghettos; in the squatter camps; on the farms and in the mine compounds. It means constant consultation between leaders and members of their organisation; it demands of us to be in constant touch with the people, to understand their needs, hopes and fears; and to work together with them to improve their conditions.”
Transformative Constitutionalism is frustrated by as I indicated by:
The love for power and positions.
We’ve got to be careful when people are prepared to do anything for power and authority.
You can never assassinate the character of other people, you can never bribe, kill other people for the general good of the public. You can’t.
You do your bit wherever you are; and you will be recognised if there is any good thing you are doing.
So be watchful and expose anybody that you know who would want to walk on the corpses of others in order to ascend to authority.
The love for fame and money and publicity.
If you love money, money is good – but if you love it more than anything else, it is a matter of time before you betray the Constitution; because if you have to choose between that which you love the most and the fundamental human rights, it is the love of your heart that you will pursue.
So watch for those who love fame and publicity; they will position themselves at the expense of principle; just to get what they want.
You must never allow a situation to arise where people are treated as fools to be deceived and tools to be used for the advancement of self or sections;
Shameless disregard for the Constitutional imperatives that could transform society is one of the issues that frustrates Constitutionalism as a transformative tool.
I realise that my time is almost up. Let me summarise in the following
“We have no doubt that the nation is committed irreversibly to acknowledging diversity and respecting the basic rights of everyone. The rights and freedoms [the Constitution] proclaims are not simply words taken from hallowed texts in other parts of the world. They represent our endeavours, and our dreams of a free and just society.” (Constitutional Court, 1995)
Our dreams and highest aspirations are contained in the Constitution.They are, among others:
Irreversible acknowledgement of diversity and respect for human rights would never allow anybody to respect the Constitution selectively and to seek to use the Constitution to undermine its potency to transform a society.
Anybody who is truly committed to Constitutionalism would not use the Constitution to retain toxic, colonialist and apartheid tendencies and practices under some sugar-coated pretences.
The resistance to entry by previously excluded demonstrates lack of commitment to Constitutionalism by those who resist. Madiba said:
“Those who sought their own freedom in the domination of others were doomed in time to ignominious failure. Out of such experience was born the understanding that there could be no LASTING PEACE, no LASTING SECURITY, NO PROSPERITY in this land unless all enjoyed freedom and JUSTICE as equals.”
For as long as we don’t all do what needs to be done, as speedy as circumstances demand, to ensure that all enjoy security, justice, we areinviting a constitutional crisis.
Injustice is unsustainable.
Our society remains toxified by racism, because we have not dealt with the first issues of colonialism and apartheid.
Our people have reached a level of desperation, by our people I mean everybody who is poor; now desperate people resolve to desperate measures and poverty is an instrument for the entrenchment of indignity.
When you have been made to lose your dignity, anything is possible.
Look at the overwhelming majority of people who rape; look at the overwhelming majority of people who commit crime.
We have kept them in a state that allows them to be just where they are; by not giving practical expression to the injustices of the past by using the Constitution as a tool for transformation.
So, we need to resolve even the land issue amicably; I am one of those who believe that we can resolve the land issue without being at one another’s throats. We can.
Let’s make it our business to make sure there is employment and remuneration equity.
We have to confront this tendency of paying black people less than we pay white counterparts; of paying women less than men even if they do the same job. I was shown a huge book that Mohammed Ali gave to Madiba and there Mohammed said:
“I’ve seen the whole world.
I learn something from people everywhere.
There’s truth in Hinduism, Christianity, Islam, all religions.
And in just plain talking. The only religion that matters is the real religion – love.”
Well in case you are tempted to criticise me for being a pastor, the bible says: “love does no harm to a neighbour, therefore love is the fulfilment of the law”. Romans 13:10
When you love your people, you will not steal from them.
You will not kill them.
You will not be involved in corruption.
You will not use the Constitution to resist change.
We need hope and Madiba said from the discomfort of his cell, that was on the 4th of February 1969:
(Letter from Nelson Mandela to his daughters, Zeni and Zindzi, 4 February 1969)
“Zindzi says her heart is sore because I am not at home and wants to know when I will come back. I do not know, my darlings, when I will return. You will remember that in the letter I wrote in 1966, I told you that the white Judge had said I should stay in jail for the rest of my life. It may be long before I come back, it may be soon. Nobody knows when it will be, not even the Judge who said I should be kept here.”
Now pay attention:
“But I am certain that one day I will be back at home to live in happiness with you until the end of my days. Do not worry about me now. I am happy, well and full of strength and HOPE´”.
When I think about it, if Mandela who knew as a lawyer that in apartheid South Africa when a revolutionary is sentenced to life imprisonment it means life imprisonment; there ought to be no hope to be freed, could still be happy, full of strength and full of hope that one day he would be released, why should you be hopeless?
Why should you allow the economic situation in which we find ourselves, to render you hopeless?
Why should you allow the limited progress that we have made to render you hopeless?
Why should you allow corruption and crime to render you hopeless when so much has already been done already, by the way?
What reason do you have to give up?
What reason do you have as a farmer – because I hear a lot of farmers are killing themselves because of the drought – what reason do you have to kill yourself?
What reason do you have that the land issue will never be resolved?
That the gender-based violence will never come to an end?
That you will never enter the economic space where it matters the most?
Let’s just love one another.
Let’s keep what kept Madiba alive; that is this, this Constitution he signed for us, to use as a transformative instrument will get us to where we need to be.
Let us be as hopeful as Nelson Mandela was.
Let us love all of our people as much as he loved us, even those who were yet to be born, to the point of giving our lives in pursuit of justice, shared prosperity, peace and stability in South Africa.
I have no doubt that anybody who has respect for Nelson Mandela will see today’s lecture as a moment for a new beginning, as a clarion call to action.
A demand by none other than Madiba himself that we’ve got to act on a daily basis to expose and root out corruption, injustice and criminality.
We’ve got to, on a daily basis in every sphere of influence you occupy to see it as your individual and collective responsibility to get South Africa to this place where it has the potential to be.
Remember, he so believed in the ideals that are synonymous to our constitution that he was prepared that if needs be that he ought to die.
May you and I who are here and anybody listening and anybody yet to listen decide that today marks the beginning of ensuring that we honour Madiba and others who suffered for you and I to be where we are; that we will never be party to corruption; that we will never condone racism, ethnicity, tribalism and gender-based violence and discrimination.
We are going to ensure accountability.
We are never going to be party to exacerbating the already existing divisions between black and white people.
We are going to be unifiers.
We are going to be reconcilers.
We are going to spend every day to ensure that the land issue and all other outstanding issues are resolved in a manner that keeps us united and reconciled and anybody who displays arrogance in holding on to the visages of apartheid and colonialism we must just ostracise that person and see him or her for who he is.
Please honour the legacy of Madiba by giving practical expression to our Constitution. May generations to come never curse you for your cowardice and failure to do what Madiba suffered for you and I to endure. DM
The FBI used to keep files on Elvis Presley. They believed he raised the sexual passions of teens thereby posing a risk to the United States.
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