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SA Constitution’s new role: A scapegoat


Judith February is executive officer: Freedom Under Law.

Tambo’s (and the ANC’s) strategic position on the Bill of Rights was that it would exist to “protect everyone”, Black and White, rich and poor and in Sachs’s words, that the Constitution itself was needed as protection against arbitrariness by all leaders and indeed, to be used “against ourselves”. That was 1988.

Former Constitutional Court justice, Albie Sachs is a charming storyteller. He talks of his debates on Constitutionalism with his old friend, the late Kader Asmal, with humour and relish. Sachs will also never miss an opportunity on public fora to explain the ANC’s debates on the Bill of Rights and the Constitution. He did this long before either was a reality. In these confusing times of noisy debate about Constitutionalism, his recollections are worth pondering.

Sachs describes the pre-1990s rights debates within the ANC as difficult and often fierce. Is the fight for human rights a “luxury” when one is fighting for national liberation from a system as brutal as apartheid? Sachs often recalls how some within the ANC believed that a Bill of Rights would only seek to protect entrenched (white) privilege while not providing the majority of citizens with the true protection.

It is an interesting perspective, especially now in 2016 as we celebrate 20 years of the adoption of the South African Constitution. Given our high levels of poverty and inequality, the Constitution has often become a target in the “blame game” with potentially dangerous consequences. For many blame the Constitution itself for the lack of transformation within our society. It is a limited argument as it ignores the politics of the day as well as the corruption and mismanagement that often lies at the heart of our inability to ensure basic rights are protected.

Recently, the University of Cape Town’s Law faculty held a series of discussions regarding transformation and the law. One of the key issues that arose out of the UCT law debate was a questioning of our 1990s transition. While a great deal of the analysis by students was inaccurate, the logic ran something like this: white people had everything, black people entered a compromise so whites could keep just about everything, and hand black people scraps off the table. It’s an ill-informed analysis that does not take into account the global and political context of the time and does not truly engage with many of the deeply progressive Constitutional Court judgments which have been handed down since 1996. Yet given the high levels of inequality, it can be compelling in a populist way. What it allows is space for the questioning of the Constitution itself and the key principles it contains. Separately, it also crucially highlights the need for Constitutional education to be emphasised more in schools among young people, and for universities to rethink how they teach Constitutional law.

Sachs offers a powerful counter-narrative. Such counter-narratives from one of the “Founding Fathers” are crucial if we are to have a reasoned debate about the past, present and future. He tells of the internal debate within the ANC, and how reason prevailed and the ANC under the astute and principled leadership of OR Tambo supported the concept of a Bill of Rights when the moment arose. “OR”, as Tambo was affectionately known, was set upon constitutionalising aspects of the struggle, and in Sachs’s words, “learning from every source” and “widening the embrace” of the ANC as a movement, and in its thinking. Tambo’s (and the ANC’s) strategic position on the Bill of Rights was that it would exist to “protect everyone”, Black and White, rich and poor and in Sachs’s words, that the Constitution itself was needed as protection against arbitrariness by all leaders and indeed, to be used “against ourselves”. That was 1988.

Sachs tells the remarkable story of creating something new, along with the late Kader Asmal, his fellow traveler, and member of the ANC’s then Constitutional committee that included Bridgette Mabandla, Penuell Maduna and Zola Skweyiya. In that famous story of the “kitchen table”, Sachs describes how he and Asmal went about starting to draft the bare bones of the Constitution and the Bill of Rights at Asmal’s kitchen table in Dublin.

Sachs also uses the example of the Old Fort prison, the bricks of which were used to build a new Constitutional Court in the heart of Johannesburg. It represents the building of something new and powerful out of the old evil of the fort prison. Sachs’s recollection is important for its calm wisdom and wide reach into the past. But one wonders whether anyone hears Judge Sachs or others amidst the noise of the politics of now?

The Constitutional Court and our Constitution were, after all, about trying to accommodate a diversity of viewpoints and should be the starting point of our deliberations on difficult questions of race and transformation. It might not provide the answers but it ought to act as a guide. The injustices of the present cannot be laid at its door. It would therefore be a pity if, in the questioning of the negotiated settlement, the Constitution becomes collateral damage.

South Africa in 2016 is a markedly different place to 1988. We have the right to speak, write what we like and more importantly, the context within which we do so has changed. We are yet seeking to shape this very messy environment in which we find ourselves, however. The choice we made to be a Constitutional democracy was not an accident, nor was it one that went without any debate and argument within the ANC and other parts of society. The commitment to fundamental rights and against the arbitrary exercise of power was deliberate. That our transition to democracy was flawed cannot be disputed. That much still needs to be done to fundamentally change the lives of those who suffer all kinds of exclusion is without doubt. Yet, the Constitution remains a transformative and progressive instrument for bringing about such change. Because what would take its place? This is the most fundamental question that now arises for South Africa, no matter how one tries to dress it up. We are in a difficult political and social moment, one that requires measured interventions from leaders across society if we are to change the status quo, yet preserve that which the Constitution commits us to; dignity and equality for all. DM


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