There is much in Comrade Kader Asmal’s life and work to reflect on, primarily his key role in drafting our Constitution.
It is fitting that we celebrate the 21st anniversary of the adoption of our Constitution in the same week that we mark Kader Asmal’s life with this inaugural memorial lecture. However, we would do his memory an injustice if this were all we reflected on. His memoirs are entitled “Politics in my blood”, and this was true in every respect of his life. Occasionally when honouring a deceased person of stature, the “what would he/she have done?” question arises. Kader Asmal left no doubt about what he would have done because he spoke frequently, openly and courageously about key issues.
Ahead of the 52nd National Conference of the ANC in 2007, Comrade Kader volubly nominated Cyril Ramaphosa for President, through the Gaby Shapiro branch. He argued the election of Jacob Zuma as President would set back the ANC, and the country. Well, a decade has passed and the succession debate is again topical, in spite of the pretence that this is not so. We need to be reminded to consider the long-term interests of the ANC and the country, to take a view about how it has deviated from its mission and to ask the tough questions about how its ethical underpinnings can be restored.
Second, there was a huge disagreement between Kader and the then-Deputy Minister of Police, Fikile Mbalula, about the militarisation of the police service. The sharp edge of the dispute was about the use of lethal force by the police. Mbalula had wanted to amend the Criminal Procedure Act to remove limitations on the use of lethal force. He’d crudely pronounced, “Yes. Shoot the bastards. Hard-nut to crack, incorrigible bastards.” Asmal spoke then of a “tainted political atmosphere in which the moral compass pointing to the core values of my movement has lost its sense of direction.” Eight years after that exchange, Fikile Mbalula is now the cabinet minister responsible for police, he remains intent on militarising the police, and the everyday violence in the lives of poor people continues.
There has recently been an intense debate about how President Zuma dragged his heels in signing the Financial Intelligence Centre Amendment Act into law. In 2005, we had requested Comrade Kader to take the presidency of FATF, the global anti-money laundering body. He said at the time of assuming the presidency: “We must continue to strengthen partnerships around the world if we are to win the war on money laundering and terrorism.” How strange then to hear individuals such as Jimmy Manyi go to parliament to rail against the bill, arguing that its passage would prevent an ANC victory in 2019. The basis of the FICA is that laundered money is, in each instance, the proceeds of crime. So, in honour of Comrade Kader and his work in this area, we should say to people like Mr Manyi that if the ANC depends on the proceeds of crime for its electoral funding, it would be better that it were not elected.
But Asmal’s greatest contribution was in the drafting of our Constitution. Famously, the process began at the Asmals’ kitchen table in their Dublin home when a group assigned by ANC President Oliver R Tambo, set about their work. That group included Zola Skweyiya and Albie Sachs. Their mission came to fruition with the passage of our Constitution on 8 May 1996.
Without a doubt, our Constitution reflects all the values that must have been in the exchange at that first meeting at the kitchen table. It is hailed by jurists and constitutional lawyers everywhere as the finest, most progressive and liberating constitution. It is recognised as marking a break with the tradition of previous constitutions. But tragically, it is neither known nor owned by the majority of South Africans.
And so, as we mark the 21st anniversary of its adoption, it is time to take stock of our founding document. Part of our grave error was that once we had adopted it, in our minds we declared the battle over, and proceeded with the everyday tasks of governing, failing to appreciate that if the Constitution were to have meaning and an impact on the lives of our people, we should have embarked on an intense programme of education and debate. We failed to do that. Today this instrument of our freedom and the means for our nation building lies somewhat abandoned.
Yet from time to time we are reminded of its value. One such instance was when Chief Justice Mogoeng Mogoeng delivered the important consensus judgment on Nkandla on 31 March 2016. The judgment reads in part:
“One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalised during the apartheid era. To achieve this goal, we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy. For this reason, public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.”
That judgment reminds us of the decisive break from tyranny to a constitutional democracy. It also reminds us that merely having courts that jealously guard our constitutional order is inadequate. Our courts are the last line of defence. To give life to our constitutional values we need a legislature and an executive that will take their mandate seriously. That same judgment, in response to an application brought by the EFF, found that the President, as Head of the Executive, had “failed to fulfil his constitutional obligations” and that the outcomes on Nkandla “amount to a failure by the National Assembly to fulfil its constitutional obligations.”
It is a profound tragedy when the two arms of government, the legislature and the executive fail to appreciate their responsibilities to advance the interests of democracy. The courts are repeatedly tested, and thankfully hold out in the interests of our values, but they alone cannot bear the responsibility of giving life to our Constitution.
The finding against the “unchecked abuse of state power” is critical, especially today when we observe the drift to tyranny in many parts of the world. We have seen this recently in Turkey where the referendum gives power to President Tayyip Erdogan to do exactly as he pleases, unchecked by any organ of state. We see it in the unfolding battles in Venezuela where President Nicolás Moduru wants to replace elected members of parliament with his appointees, and where he already has loaded the judiciary with his supporters to implement his views. We observe the tyranny in President Rodrigo Duterte in the Philippines, who has declared he “does not give a shit about human rights.” And we observe it all too frequently in President Vladimir Putin in Russia who operates in a manner completely unchecked. It is at times like these that we really appreciate the values of our constitution and the institutions, such as the Constitutional Court, created by it.
The question before us though is how we can build the caring and inclusive society that our Constitution requires us to do. Let’s reflect on its construct.
First, it sets out its purpose in the preamble where it requires of society among other things to:
Second, it sets out the Founding Provisions, which include a commitment to human dignity, non-racialism and non-sexism, universal adult suffrage, supremacy of the constitution, citizenship, the anthem, the flag, and our languages.
Third, it sets out the Bill of Rights, which it describes as the “cornerstone of democracy”. A few of these may appear contentious even now.
Section 7(2) leaves no doubt about responsibility. It reads: “the state must respect protect, promote and fulfil the rights in the Bill of Rights.”
Section 9(1) reads: “Everyone is equal before the law and has the right to equal protection and benefit of the law.”
Section 25 (2) reads: “Property may only be expropriated in terms of a law of general application – for public purpose or in the public interest, and subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court; and
Section 29 reads: “everyone has the right to … further (higher) education, which the state, through reasonable measures, must make progressively available and accessible.”
As important as these sections are, there is unlikely to be any automatic implementation. The Constitution sets out the objectives for society – an equitable society that advances the interests and quality of life of each citizen. To give life to these values and objectives requires ethical political leadership and active citizenry. So, what is expected of us when those who govern us do not behave as the Constitution intends them to?
When the President speaks not of his leadership responsibilities, and his oath of office, but of the fact that he is not afraid to go to jail, he fails as a leader.
The Constitution requires of the state to actively protect and promote citizens’ rights and entitlements. When these responsibilities are ignored by the state, and the checks and balances appear not to function, we cannot just fold our arms, or blame the constitution for human and state inaction. Nor can we solely depend on the courts for remedy. We need to demand that the legislature and the executive function as intended by the constitution and in the interests of society.
Certain truths are evident in various sections of the Constitution. Property rights are dealt with sensitively, in part to prevent the tyranny of the past, enacted through the Group Areas Act, forced removals and myriad acts of terror against the people. Nowhere in Section 25 is there reference to “willing buyer- willing seller”.
It asks for a law of general application to allow for expropriation “for a public purpose or in the public interest”. Land for redistribution is distinctly in the public interest. Yet, 21 years after the adoption of our Constitution, Parliament has still not drafted an Expropriation Act that passes muster. So, the disadvantage of landlessness continues. This is a consequence of human inaction, not a fault of the Constitution.
To suggest that the Constitution needs to be changed, when a well-drafted law can achieve the purpose of more efficient land reform, is disingenuous.
We must also resolve the import of Section 29 on the rights to further education. It speaks of progressive availability and accessibility. We need discussions involving a range of participants, both state and non-state, students and university administrations, as well as civil society to reach an understanding of what such progressive realisation means. Each right generates obligations and all the rights and entitlements must be read together since advancing on one has an impact on the ability to advance on the rest. Similarly, in the absence of a programme by the state to “actively respect, protect, promote and fulfil the rights in the Bill of Rights”, all rights actually appear limited.
We can do justice to the vision, and the compilation of rights and responsibilities articulated in our constitution, if we assume the same restlessness that Kader Asmal did about its implementation. When we crafted the National Development Plan, we asked how we could breathe activity into securing the rights articulated in the Constitution. Almost four years after tabling it in Parliament, we observe no programme for its implementation. The NDP, like the Constitution, is a plan for all the people and not merely for the state. Both documents are products of an analysis at a specific time. To have meaning, the values need be retained and the context sharpened by the process of active interaction, engagement, implementation, and then measurement of results.
A well-communicated implementation plan for the NDP is essential to unlock the vision and values of the Constitution.
But in respect of both the constitution and the NDP, we only have the lip service of the occasional mention. There will be no automatic realisation.
Moreover, the increasing evidence of corruption suggests that too many individuals occupy positions of authority for themselves and their cronies. The poor and vulnerable are left behind. There is little fairness in society in the face of rampant corruption.
Sadly, the quality of our leadership is the biggest liability that confronts us today. But there is an opportunity to remedy this situation. We must be relentless in calling out bad actions. Moreover, we must mobilise for the election of a values-based leadership cadre, which will demonstrate its ability to “pass through the eye of the needle”.
Leadership will be accountable only if the organs of accountability are constructed within the ANC. Similarly, public representatives must be held accountable to the organs of governance. We must return the ANC to the movement that first attracted us, a movement which, in the words of Comrade Kader Asmal has its “moral compass pointing in the direction of its core values.”
“Liberation is an act of the will,” wrote the author Tony Judt. “We cannot hope to reconstruct our dilapidated public conversation – no less than our crumbling physical infrastructure – unless we become sufficiently angry at our present condition.”
This is a time of deep crisis. We must show that the quality of leadership that we each possess and fearlessness to express our views are the remedies demanded of each and all of us.
The building of a new society is an active process. As the author, Edmund Burke writes: “Society is a partnership between not only those who are living, but between those who are living, those who are dead and those who are to be born.” Our Constitution provides such a thread of continuity, but its success depends on the actions of citizens in its support.
This is an edited version of the inaugural Kader Asmal Memorial lecture delivered at the University of Cape Town on 6 May 2017
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