SA has come a long way, but the road to freedom goes on

01 May 2016 - 02:01 By George Bizos

Human rights lawyer George Bizos argues that while the principles that underpin our constitution must remain inviolable, the constitution itself should be a living document.

Cyril Ramaphosa, who was ANC secretary-general at the time, stands next to President Nelson Mandela as he holds up a copy of the new South African Constitution at its signing in 1996.
Cyril Ramaphosa, who was ANC secretary-general at the time, stands next to President Nelson Mandela as he holds up a copy of the new South African Constitution at its signing in 1996.
Image: ROBBIE BOTHA

South Africa’s progress towards democracy can only be described as one of triumph.

We have broken the shackles of the apartheid era and have the constitution as the highwater mark. I refuse to accept nothing has changed. A simple example of this can be seen at my office every day where all of us, of varied races and backgrounds, eat lunch together in the kitchen, a far cry from my early days at the bar, where I had to fight to be allowed to share chambers with Duma Nokwe.

We of course have a long way to go in achieving our constitutional ideals. We have perhaps never before in our post-1994 democracy been confronted as starkly with the realities of inequality as we were by the recent student protests. South Africa remains one of the most unequal societies in the world, and the struggle to remedy that continues.

Ask any South African about historical heroes and you will receive a plethora of names who served as our guiding lights into the democratic era. In their wisdom, they saw the start of the fall of colonialism as a turning point in the realisation of the ideals of freedom and equality for all. For many, these were ideals pursued not knowing whether the realisation would materialise in their lifetimes, but with a certainty that they were worth pursuing nonetheless.

We saw a world where the territorial gains by colonialists were being dissolved; where the right to self-determination, free of want and fear, was being realised; trade barriers were being lowered; and aggressor nations were being disarmed.

In this way, one began to see a version of South Africa that had not been imagined before.

But the fall of apartheid was complicat ed. There was no overt aggressor state, but rather an aggressive controller. In the face of this oppression, the anti-apartheid movements — diverse as they might have been, from political parties such as the ANC to workers’ movements, women’s movements and youth movements — found common cause in the ideal of freedom for all in South Africa.

The cost and the losses that came in realising this freedom cannot be gainsaid. The Treason Trial, the student uprisings, the death of activists like Steve Biko and Ahmed Timol in police detention, the hazardous activities undertaken by the military wings — the suffering was immense.

It is difficult to comprehend the depth of the suffering. When I think, for example, of the death of Biko in custody and the fear that more would suffer the same fate, I remain awe-struck by the continued and concerted efforts of so many people across the country who overcame their fears to pursue the cause.

We are entitled to demand openness, transparency and accountability from all, even those in the highest echelons of government

In recalling the student uprisings and reading the recent comparisons with the student movements that we have seen over the past year, I pray that we never again see the innocent blood being spilt of those pursuing their right to receive a decent education.

Many people continue to carry with them the pain and scars of those days. When freedom ultimately came, it was not a victory for a particular movement, it was for the people as a whole. By 1985, we could almost taste freedom, but there was still a long and difficult path ahead before it could be achieved. The tide may have turned slowly, but it did turn.

Amid the pain of those dark days, though, were moments of joy. The release of Nelson Mandela comes to mind. The memory of him standing before the world, a free man smiling with his arms raised high — nothing can compare with that moment.

I relived some of the darkest times of South Africa’s history in that moment. I realised, too, that many of the struggles, the violence and the heartache were behind us, and what lay ahead was for us to get down to the business of running a free and democratic country. The challenge was daunting, but thrilling.

The constitution and I have had a long friendship. I participated in the negotiation and drafting of the constitution, and was a member of the team of lawyers who argued for its certification before the Constitutional Court. For many years I have been involved in constitutional litigation and today still work in the constitutional litigation unit of the Legal Resources Centre. As with all good friendships, I have defended it, I have challenged it and I have tested its limits and bounds. I continue to stand by it and believe in the potential that it holds.

The constitution was approved in May 1996 by the National Assembly by an overwhelming majority: 421 of the 435 members in favour, only two opposed. Twelve abstained.

This, however, was only the first hurdle. It still needed to be certified by the Constitutional Court as being in line with the 34 constitutional principles contained in the interim constitution. This was a novel approach and we were uncertain of what to expect.

The five of us representing the Constitutional Assembly — a team which included Wim Trengove SC and Marumo Moerane SC — drafted more than 250 pages of argument and schedules that we hoped would show conclusively that the proposed constitution complied with these principles.

The debate in the courtroom was heated and robust, and I remember reading the placards of a leading Johannesburg newspaper after the hearing which said “Bizos clashes with judges”. I found the characterisation jarring, preferring to think of it as a necessary consequence of the job. This so-called clash was a critical process to test the strength and resilience of what was to become our constitution.

When it came to certification, the Constitutional Court was by no means unaware of the gravity of the task before it. As the court stated in its judgment, “we were mindful, during both the previous deliberations and again now, that the finality of certification demanded, and demands, we make assurance doubly sure”.

At the hearing, Judge Richard Goldstone commented that a future Constitutional Court “sitting in 10 or 300 years’ time, would have to refer to the constitutional principles. They do not disappear. They would be a primary source of interpretation.”

To which I responded: “[E]ven in a deep freeze, they would be there forever.”

We weren’t successful in our first attempt at certification, but the court was satisfied, following the second hearing, that the 34 constitutional principles had been met, and certified the amended text which was signed by President Mandela a few days later, on December 4 1996.

While it is my hope that the principles and values underpinning the constitution are never allowed to wane, the constitution itself is not necessarily cast in stone. It should and must be given the space to evolve naturally in line with society’s evolution.

The inclusion of justiciable socioeconomic rights in the constitution was a significant milestone, subject to the qualification of progressive realisation and availability of resources.

The goal requires the state to improve the enjoyment of socioeconomic rights to the maximum extent possible, even in the face of resource constraints. But how does one reconcile the understanding of available resources in the face of the rampant corruption that we have seen take place?

We are entitled to demand openness, transparency and accountability from all, even those in the highest echelons of government.

The path to freedom may lead in many different directions, but we must not falter as we continue this march. We must demand accountability and transparency. We must insist that all levels of government perform their duties, from abiding by court orders and effectively rolling out social assistance to implementing recommendations of bodies such as the Truth and Reconciliation Commission and the Marikana inquiry.

We must ensure that civil society organisations and activists are protected, and we must share a mutual outrage at instances such as the killing of the anti-mining activist Bazooka Radebe in the Xolobeni community in the Eastern Cape.

Let us never lose sight of the road we have travelled to enjoy this freedom, or of the hope that we fully realise our constitutional ideals.

- This is an edited speech delivered at the University of the Witwatersrand as part of the Freedom Month lecture co-hosted by the Department of Arts and Culture and the Wits Centre for Diversity Studies.

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