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24 March 2017 17:46 (South Africa)
Opinionista Mark Heywood

Towards a Politics and Jurisprudence of Love

  • Mark Heywood
    mark-heywood.jpg
    Mark Heywood

    Mark Heywood is Executive Director of SECTION27 and an Executive member of the Treatment Action Campaign.

A reflection on the life of Dikgang Moseneke to mark 20 years of the South African Constitution.

The life of Dikgang Moseneke proves my theory that if you use your waking hours well and keep your sleeping hours to a minimum, there is a lot you can get done in the course of a life. In his one life he has been a political prisoner, a son, an attorney, a father, an advocate, a husband, a constitutional court judge and a business person. And from the vantage point offered by each he has seen both the horrors and the highs of what it means to be alive.   

One thing that is not in doubt about former Deputy Chief Justice Moseneke is his magnificence as a jurist.

Recently I was asked to provide a tribute to Moseneke at the opening of a Wits Law School Symposium on his jurisprudence and thought. The organiser, Professor Cathi Albertyn, sent me a list of the 38 Constitutional Court judgments he had penned. I think she expected that I would mine their raw materials and find whatever I wanted to say from within this trove.

However, I am a legal activist, not a lawyer. Judgments interest me less for their law than their poetry. I decided to rummage in what lawyers call obiter dictum (observations made in passing) and the best place for this turned out to be not in the 38 judgments but in Moseneke’s just published memoir, My Own Liberator

In the author’s note to this fine book Moseneke describes its writing as a “big escape from the judicial toil”. Using simple English he then gives away the recipe for writing judgments:

“Judicial writing tends to be formalistic and imposes a structure informed by legal reasoning. A judge must first absorb and rehash the facts. Then he or she must identify the law that regulates the dispute embedded in the facts. She must then apply the law to the facts. She may have to resort to judicial precedent for guidance on a proper understanding of the law or its application to the facts. At that point, she has to weigh in on one side or the other of the dispute and, lastly, make a just order of court. Court judgments tend to be cast in that predictable mould.” (p.xix) 

***

That morning I didn’t want to be predictable, ponderous or obfuscatory in the tribute I paid to Moseneke. I decided to talk about something important that reading his book had made me appreciate with much greater clarity than before. A light bulb moment as it were.

My Moseneke-inspired epiphany was about the place that good old common-or-garden love has in the politics and jurisprudence of great men and women.

As I had worked my way across the pages of My Own Liberator it struck me that love is the missing link that is common between the large number of men and women who played leadership roles in the liberation struggle and the much smaller group who have held to principle in the post liberation period in South Africa.

A reader who plows through the biographies about or autobiographies of luminaries like Chris Hani, Oliver Tambo, Priscilla Ntantala, Nelson Mandela, Elinor Sisulu, Kgalema Motlanthe, Pregs Govender and now Moseneke will come to understand that the wellspring of their politics rises from crucial and common experiences:

  • First comes the young man or woman’s anger at the loss of dignity, autonomy and land; their experience of racism and abuse at the hands of the law is akin to an experience of being stripped.
  • But side by side with this their experience of family, education and – crucially – employment become foundations of strength and resistance.
  • In each case access to great literature  in particular seems to provide the needles for the moral compass of a future revolutionary.

Rather than offering you my theory as hearsay let Moseneke speak for himself. Of his family Moseneke recalls:

“I realise now how privileged we were to be nurtured in a family that had the gift of love, care and togetherness.” (p.41)

Of his school teachers he reflects that:

“They and other educators in public schools seemed to have vowed to make their young learners whole human beings. Theirs was a passive resistance against the bankrupt Bantu Education. With all its security tentacles, the regime could not police teaching and learning in the classrooms. Most teachers were not voluble activists, but they understood the formative attributes of their task. They could alter the course of the lives of their young charges. To that end, most of our teachers exuded self-worth and purpose, which they sought to pass on to their young wards.” (p.49)

When recreating his years on Robben Island he reimagines his “10pm-to-midnight crusade on the island” and how during the even lonelier hours he worked his way through writings of Jane Austen, Charlotte Bronte, Chaucer, Shakespeare’s tragedies, the poet Gerard Manley Hopkins, TS Eliot, Keats. Later he describes how he was in “Mmutlanyane Mogoba’s drama society” which performed The Merchant of Venice and “the more opaque and arid” Waiting for Godot.  (p.115/16).

Here is his conclusion about the value of reading:

“In permitting study and reading, unwittingly the prison authorities had opened vast spaces for the prisoners on the island. We could read, write and think. As a result, remarkable creativity and new thinking came forth from these seeds. Our incarceration became bearable. Physical discomfort gave way to the newly found freedom to hope, and to dream of the beginnings of a new society. The mind virtually subdued the matter.”  (p.119)

***

Fast-forward 30 years. By the time he was appointed as a judge in 2001 Moseneke had clearly given deep thought to the role that quality education can play in human development and life. You can’t help notice how his own liberation through education informed the way he “applied the law to the facts” and then shaped jurisprudence on education.

[As an aside I found it interesting that Moseneke, while recalling his work as a member of the technical committee drafting the interim Constitution in early 1994, noted that “except for the right to basic education there was no big push for the inclusion of socio-economic rights as properly justiciable”. (p301) I will return to this!]

Moseneke was appointed to the Constitutional Court in November 2002. Two years later he complained to a journalist that he felt disappointed that “nobody has come to me and said my son is studying under a tree, there’s no chalk, there’s no blackboard, the teachers don’t come to school every day.” You can feel his frustration.

Eventually, however, Moseneke was given the opportunity to embed his vision in our law. Two year later in a case about school language policy which lawyers call Hoërskool Ermelo (put simply an Afrikaans-speaking school was using children’s right to be taught in their own language as a way to keep black English-speaking learners out of a school), Moseneke described the Constitution’s vision of public education as being an “unconcealed design”, adding that “the Constitution ardently demands that this social unevenness be addressed by a radical transformation of society as a whole and of public education in particular. This the Constitution does in a cluster of warranties.”

In his very last judgment Moseneke combined his penchant for poetry and prose in the opening movement to a symphonic judgment on the right to basic education. In no uncertain terms he states:

[1] Teaching and learning are as old as human beings have lived. Education is primordial and integral to the human condition. The new arrivals into humankind are taught and learn how to live useful and fulfilled lives. So education’s formative goodness to the body, intellect and soul has been beyond question from antiquity. And its collective usefulness to communities has been recognised from prehistoric times to now. The indigenous and ancient African wisdom teaches that “thuto ke lesedi la sechaba”; “imfundo yisibani” (education is the light of the nation) and recognises that education is a collective enterprise by observing that it takes a village to bring up a child.

He then goes on to quote Aristotle, Immanuel Kant, Karl Marx, Mahatma Gandhi, Helen Keller, Nelson  Mandela, Kofi Annan, Malala Yousafzai, the Holy Bible, Buddha, and the Holy  Qur’an to reinforce his point. Sadly though, in reality, the poetry of the Constitution’s vision and the practice of its implementation are out of sync with each other, just as the judiciary and the executive over the duties it creates.

***

I am not raising these points just for the sake of a retrospective celebration of Moseneke. This is not intellectual doodling. The connection that should exist between a leader’s love of and resultant commitment to humanity and her approach to the political struggle for social justice is as crucial to today and tomorrow.

My argument is that an understanding of love, loving people, loving human civilisation is crucial to good leadership in progressive politics; love is vital in contemporary struggles for social justice; love should inform the character of and methods used in that struggle. Love is a guarantee that leaders will not act in a way that ever recklessly endangers the people who look to them for guidance.

These arguments are important because South Africa is in yet another transition. This time it is a leadership transition between the generation of men and women who cut their teeth in the quest for political freedom, represented by people like Moseneke, and a younger and untested generation. How we undertake that transition is vital; how older people transfer  knowledge and experience across the widening generation gap is crucial. This is something an older generation of activists, including Tiego Moseneke, Dikgang’s younger brother, are now actively engaged in with some of the students who have led the #FeesMustFall movement in 2016.

But what should worry us deeply is that the world the next generation of leaders are growing up in is, ironically, given the darkness we have emerged from, in certain ways far worse than that experienced by young men and women of the 1960s and 1970s.

The escape routes – education, family, literature, employment – described by Moseneke and his peers have been sealed.

Of particular significance is:

The breakdown of structures of family that can nurture, mentor and transmit political and moral values (by this I am not arguing for the traditional nuclear family!). The AIDS epidemic has left over three-and-a-half-million children orphaned. What does that tell you? Sky-high youth unemployment and violence have made far too many homes places of fear rather than sanctuary.

This dire situation contributes to what the Children’s Institute has called “the intergenerational transmission of poverty”.

Then, compounding both of the above, we have the near break-down of a system of basic education for most black children. In the last 20 years our government has rolled out the most stingy form of education. Access has improved but quality has gone to the dogs. This is something that Moseneke ruefully acknowledges.

To be a child in South Africa is to live in a nightmare. Do we really think their experience will have no impact on our politics? Can generations of children who have grown up in hatred and violence be expected to understand a politics of love, or a Constitution that is premised on love?

***

These harsh and horrid facts cannot but imprint their experience on the lives and outlook of young people and in turn have their impact on politics.

This is something that struck me during the #FeesMustFall movement’s protests. In 2015 the sudden almost spontaneous appearance of #FMF raised hope. The movement was non-racial, anti-party political. It was “woke”. It was queer. It was defiant, disruptive. It was imaginative, creative, brave. It inspired. It seemed to open the road to another politics.

But in 2016 in the face of police violence, the intransigence of the Zuma administration and certain university heads, it seemed to morph into something different. My fear is that some of the people who have assumed leadership (by no means all) exhibit the symptoms of human deprivation. Some (by no means all) seemed to be driven by a politics that is being stripped of its humanity, by a hatred that is loaded with mish-mash bits of incoherent and often contradictory ideologies.

I noticed this during the Peace meeting that was attempted at Wits University on October 19. Vice Chancellor Adam Habib has made several serious errors in his response to the crisis. He often comes across as arrogant and self-righteous and this sometimes works against his good intentions. But that evening the threat of violence as he was chased out of the Holy Trinity Catholic Church felt to me like a surrender of the moral high ground by student leaders. Later that evening as I sat within the crowd of students in Solomon Mahlangu house and listened to what students called “the parents” speak I felt the swings of mood among the students beside me. One was a second-year chemistry student. Another a literature student. They wanted fees to fall, they wanted a just resolution, they also wanted to complete the year and write exams and they admitted that they felt trapped in a fearful no-middle ground between the zero-sum games of student leaders and an unflinching Vice Chancellor.

I thought to myself, “The Vice Chancellor and the students leaders will survive this. The students beside me may not.’”

At that point I felt that the role of a leader should have had reference to the best interests of the ordinary student, that it should have been rooted in a love for their lives.

But I am not one to howl at the students. I support their struggle. I don’t support some of the methods. But it takes two to tango. Populist leaders can only succeed after people have been made vulnerable. People are made vulnerable by political and economic powers that deprive them of dignity, autonomy, opportunity and hope (things we called human rights in our Constitution). People are vulnerable when they are rendered less able to make informed choices about the people whose leadership they accept and are prepared to follow by being deprived of information and the foundations that layer our shared humanity.

This story is being played out all over the world.

So back we go to education. Back to family. Back into the vicious bloody circle. Back to our culpability in the crimes against love and humanity that we see every day.

***

Moseneke titles the last chapter of his memoir Was it all in vain?. You know that that is not what he thinks, but he asks the question nonetheless. The 11 pages that address that question are an incredibly taut summary of where we find ourselves 20 years after Nelson Mandela signed our Constitution. But what I found most striking is the following deep insight coming – remember – from a man who helped write the Constitution, and has thought about it almost every day since then.

I advise you to read the next 188 words slowly and carefully. Then read them again.

“When the Constitution was negotiated, the parties skirted around the need for social change. The negotiators did not stare in the eye the historical structural inequality in the economy. There was no pact on how to achieve the equality and social justice the economy promised. Instead, the Constitution imposed qualified duties on the state to facilitate access to social goods such as health, housing, water, education and social grants. But these socio-economic entitlements were premised on and limited to state transfers as and when funds were available. On the face of it, the protections were praiseworthy and they promised a state-sponsored reduction of poverty, but in practice socio-economic rights did not speak to how to restructure the economy in a way that rendered it more productive and inclusive.

“The absence of a social pact was a far-reaching omission given the inequality embedded in the social structure of the country at the start of the transition. I am, however, not debating whether at the time of the negotiations, given the balance of forces, a radical social pact was feasible. Short of an outright military conquest, probably it was not.” (p.352-3)

Several pages later Moseneke asks that we point young people “to some obvious and burning questions? For example, how, within the discipline of our Constitution, do we collectively reconfigure the social structure of the country?”

Yes, that is the question.

***

These are the reasons why it is vital to reconcentrate all our efforts on the realisation of the Constitution, but especially on social justice, that pillar which, alongside “democratic values and human rights”, is vital to transformation and peace.

Moseneke ends by “pleading that our country finds the ingenuity to resolve its social injustices”. We ignore “social justice” at our peril.

Yet, as I write our government is using our money to mount a defence against legal action over its failure to implement its own Minimum Norms and Standards for School Infrastructure within time frames it set. In Limpopo our government is employing lawyers to defend their culpability in the death of young Michael Komape. In both cases they cite the premise of affordability.

They do it in your name.

If you have followed this article to the end I hope you will now agree the truth is we can’t afford not to provide quality free basic and tertiary education. It’s a question of love. DM

This is an edited version of a speech presented to Wits University/UCT Symposium in Honour of Dikgang Moseneke, 30 November 2016.

  • Mark Heywood
    mark-heywood.jpg
    Mark Heywood

    Mark Heywood is Executive Director of SECTION27 and an Executive member of the Treatment Action Campaign.

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