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Lest we forget, the Constitution is the supreme law of...

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Lest we forget, the Constitution is the supreme law of South Africa

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Bonang Mohale is the President of Business Unity South Africa (Busa), Chancellor of the University of the Free State, Professor of Practice in the Johannesburg Business School (JBS) College of Business and Economics, and Chairman of both The Bidvest Group Limited and SBV Services. He is the author of the best-selling book, ‘Lift As You Rise’.

The Codesa talks of December 1991 to May 1992 marked the foundation of South African democracy — the passage from the old to the new, from the apartheid regime to a multicultural, multiracial democracy. The whole process culminated in the final Constitution of December 1996.

“It is therefore important that as we put our vision to the country, we should do so directly, knowing that people out there want to be part of the process and will be responding, because in the end the drafting of the Constitution must not be the preserve of the 490 members of this Assembly. It must be a constitution which they feel they own — a constitution that they know and feel belongs to them. We must therefore draft a constitution that will be fully legitimate, a constitution that will represent the aspiration of our people”: Matamela Cyril Ramaphosa, chairperson of the Constitutional Assembly, 24 January 1995.

It was Thursday, 19 March 1998, and before taking the witness stand in the Pretoria High Court, President Nelson Mandela said his blood boiled at being forced into the chamber by the controversial Dr Louis Luyt to be grilled about his decision to set up a commission to investigate alleged racism, graft and nepotism in rugby, the game Luyt had been accused of operating like a personal fiefdom.

The summons to the president, which shocked many legal experts, was issued by the right-wing Judge William de Villiers who consistently opposed the admission of blacks to the Pretoria Bar Council until the early 1980s and was conservative in apartheid-era political trials.

Luyt had accused then sports minister Steve Tshwete of conducting a vendetta against him and argued in court that Mandela did not properly consider the arguments for a commission, but simply rubber-stamped Tshwete’s decision. He also insisted that his South African Rugby Football Union was a private association and should be free from government.

Being among the president’s supporters who packed the court, we most certainly regarded the entire proceeding as disrespectful and a little humiliating to Mandela. The president said he was attending out of respect for the administration of justice and was keen to demonstrate openness. But why, he asked De Villiers, was Luyt resisting transparency? “It gives the message he is hiding something,” he said.

South Africa as a country adopted a Constitution in 1996 which is the supreme law. Everyone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms. Section 9 of the Constitution guarantees equality before the law and freedom from discrimination to the people of South Africa.

It is the first right listed in the Bill of Rights. It prohibits discrimination by the government and by private persons. However, it also allows for affirmative action to be taken to redress past unfair discrimination.

In the first years of its existence, our Constitutional Court repeatedly emphasised the primacy of the right to equality. The apex court has referred to equality as “our Constitution’s focus and organising principle” and “the very ethos upon which the Constitution is premised”. The judges have also remarked that equality “lies at the very heart of the Constitution”. The particular importance of the right to equality derives from South Africa’s history in which inequality pervaded apartheid laws, policies, practices and attitudes.

Schedule 2 (amended by s.2 of the Constitution First Amendment Act of 1997 and substituted by s.18 of the Constitution Sixth Amendment Act of 2001) prescribes the oath or solemn affirmation of the President of South Africa before the chief justice. The president must swear as follows:

“In the presence of everyone assembled here, and in full realisation of the high calling I assume as President of the Republic of South Africa, I, Matamela Cyril Ramaphosa swear that I will be faithful to the Republic of South Africa, and will obey, observe, uphold and maintain the Constitution and all other laws of the Republic, and I solemnly and sincerely promise that I will always promote all that will advance the Republic, and oppose all that may harm it; protect and promote the rights of all South Africans; discharge my duties with all my strength and talents to the best of my knowledge and ability and true to the dictates of my conscience; do justice to all; and devote myself to the wellbeing of the Republic and all of its people. So help me God.”

The oath is an important ceremonial gesture signifying the official start to one’s term in office. Importantly, it is a means for the official to make a public commitment to the duties, responsibilities and obligations associated with holding public office. This is an official promise by a person who has been elected to a public office to fulfil the duties of the office according to the law. Liberal democracy is defined by four pillars — a free press, independent civil society, constitutional democracy and the rule of law! It is premised on producing institutions that are honest and fair and grounded in excellence, evidence and science. 

Lest we forget, our democracy was forged in blood and fire! In September 1991, political parties and interest groups committed themselves to a joint peace effort by signing the National Peace Accord — the first multilateral agreement of the post-1990 period. At the end of the “pre-negotiation phase” in October 1991, further talks would take place within a forum called the Convention for a Democratic South Africa (Codesa).

The Codesa talks of December 1991 to May 1992 marked the foundation of South African democracy — the passage of the old to the new, from the apartheid regime to a multicultural and multiracial democracy. Richard Spitz (1998) correctly qualified it as a “way of compromise” and Steven Friedman (1993) referred to the “seeds of compromise”. In the quest for constitutional solutions for the institution of a new South Africa, Codesa was a crucial moment.

So, to better understand it, it is important to link it to South Africa’s earlier history. It was the whole process that culminated in the final Constitution of December 1996, which started with the negotiations in Kempton Park in 1991. Although Codesa itself collapsed in May 1992, the multiparty negotiations of 1993 resumed, culminating in the final 1996 Constitution.

The “checks and balances” system consecrated in the final Constitution shows once again how democratic power is the “power of none” as a result of the systematic mutual control of the different branches of government. The executive is accountable to the legislature and the legislature to the judiciary and vice versa.

But more importantly, all of them are ultimately accountable to the citizenry as a whole, the people. Codesa was thus a moment when South African society was “present-to-itself” in an unprecedented way. Right across all social sectors, South Africans were caught up in the drama of the protracted negotiations, during which opposing conceptions of South African society were brought into interaction with one another.

Arguments and values were exposed to adversarial pressure, with significant effects for the forging of a national bond able to accommodate the strains of democratic pluralism. DM

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