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A Great South Africa and The Constitution

Published on 2012-05-11


DURBAN, 11 MAY 2012

During our historic negotiations in the early ‘nineties, we South Africans reached fundamental and well-considered agreements on the kind of society that we wanted. 

•    We agreed that we wanted a non-racial and non-sexist society based on human dignity, the achievement of equality and the advancement of human rights and freedoms;
•    We agreed that Constitution - and not the majority of the day - would be sovereign.  
•    We agreed that we would establish a truly democratic system of government subject to the rule of law.  

Most importantly, we all agreed on the need for transformation – on the rapid development of our people toward equality, human dignity and the full enjoyment of rights. At the same time, we also agreed on the need to protect our languages and cultures and to ensure that no-one could be arbitrarily deprived of their property.

Parties representing some 90% of our people – and substantial majorities of all our communities – endorsed the constitutional accord. We reached agreement despite our deeply divided and traumatic history. We succeeded despite all the crises, the walk-outs, the violence and the reality that we all had to make painful concessions.  

Our achievement was rightly regarded by the whole world as one of the crowning glories of the latter part of the 20th century. It was seen everywhere as an example to all divided societies of what could be achieved by rational debate, compromise and goodwill.  

I believe that whatever party we belonged to, it was our finest hour.

We all felt good, that firm foundations had been laid for building a great South Africa.  Everything was in place. It was on this basis that the National Party under my leadership handed over sovereign power – not to another political party – but to the Constitution.

It was also on this basis South Africa has made remarkable progress during the past 18 years on a number of fronts:

After decades of isolation and criticism, the new South Africa has emerged as one of the most respected nations in the world.

o    We are regarded as an international model for democracy, constitutionalism, human rights and the rule of law;
o    We have set an example for national reconciliation and multiculturalism;
o    We have played a commendable role in promoting peace throughout our continent;
o    We have become a member of BRICSA – the most dynamic group of global emerging economies;
o    We play a leading role in international forums – in the UN Security Council and in the African Union.

We have experienced 18 years of economic growth - interrupted only briefly by the global economic crisis of 2008.

o    During this period, South Africa, under the guidance of Trevor Manuel, implemented sound macro-economic policies that helped ensure steady growth rates rising to 5% in 2004 – 05.  They also helped to protect us from the worst consequences of the 2008 economic crisis.
o    We now have the 24th largest economy in the world.  We produce 35% of the GDP of sub-Saharan Africa with only 6.5% of its population.
o    Our public debt is less than 36% of GDP - and external debt is only 16% of GDP.  Countries like the USA, Japan, Italy and Britain would die to have such low debt ratios;
o    Tourism now contributes almost 9% of GDP –  more than mining.  
o    Automobile production - at 7% of GDP – is  two and a half times bigger than agriculture.  In 2008 we produced 600 000 vehicles. 

South Africa has shown that we can compete with the best in the world. According to the World economic Forum’s Global Competitiveness Report:

o    South Africa’s auditing and reporting standards; and the regulation of its security exchanges are the best in the world;
o    Our banks are regarded as the second most sound in the world – and we have the second most effecacious corporate boards;
o    The availability of financial services and our minority shareholder protection are the third best in the world; 

We have also made remarkable social progress in many areas:

o    The percentage of the population living in absolute poverty has declined from 31% in 1995 to 23% in 2008  - largely because of social grants.
o    94% of households now have access to drinkable water;
o    more than 3 million housing units have been built – enough to house almost a quarter of the population – with another million units in the pipeline;
o    three quarters of the population now has access to electricity and sanitation compared with only half in 1994;

Most importantly, after 350 years of conflict and division, we have started to build a proud, multicultural nation – that Archbishop Tutu has called the Rainbow Nation of God.   

o    We witnessed the first stirrings our new nation when President Mandela donned the Number 6 rugby jersey after our fairy tale victory in the 1995 Rugby World Cup. 
o    We saw it come into full bloom two years ago when South Africa hosted the most successful ever Soccer World Cup.   We showed the world what we South Africans can achieve when we work together.  And when Bafana Bafana was eliminated – all of us black, white coloured and Asian, shifted our support to another African country - Ghana.
o    We see it also in the immense pride that we have developed for our national symbols – for our 6-coloured flag and for our multi-lingual national anthem.

All this progress has been achieved on the firm basis of our new constitution. 

Unfortunately this very foundation of the great South Africa we were building and that we all want to continue to build, is under threat. On 5 March, in discussion papers for its upcoming policy conference, the ANC announced that the present Constitution had served its purpose and we should move forward to a “second transition”.  

According to the policy discussion papers, “our first transition embodied a framework and a national consensus that may have been appropriate for political emancipation, a political transition, but has proven inadequate and inappropriate for our social and economic transformation phase.” 

According to the policy papers, the ANC is thinking about dispensing with some of the cornerstones on which our new society has been established, including the present role and powers of the provinces.  In line with the controversial Green Paper on Land Reform property rights would also be at risk. 

I disagree strongly that the solemn agreements we reached in our historic negotiations during the 1990s were temporary arrangements that can be discarded or amended at the whim of one of the contracting parties. 

After the adoption of the Constitution on 8 May, 1996, former President Nelson Mandela said that its founding principles were “immutable”.  He described the constitution as “our national soul, our compact with one another as citizens, underpinned by our highest aspirations and our deepest apprehensions”.  He also made a pledge that “Never and never again shall the laws of our land rend our people apart or legalise their oppression and repression.”  

Neither is there any validity to the claim that the Constitution “has proven inadequate and inappropriate for our social and economic transformation phase.”

The simple fact is that there is nothing in the Constitution that stands in the way of achieving success with social and economic transformation.   On the contrary, the Constitution demands that we should all work for a society based on human dignity, the achievement of equality and the enjoyment of human rights.

It is true that, just as we have succeeded brilliantly in many areas since 1994, we have failed dismally in other key areas.  The unhappy reality is that
•    the right to equality has been negated by the fact that after 18 years we are still one of the most unequal societies in the world.  
•    Our catastophic education performance is denying the great majority of our children of any prospect of decent education;
•    Unemployment of more than 35% is depriving millions of South Africans of the right to dignity and to persue the professions of their choice;
•    rampant violent crime too often deprives people of their right to life; their right to be free from all forms of violence; and their right to property;

Solutions to the problems that confront us do not require constitutional changes:  They need instead the kind of sensible and co-operative approach set out in the government’s own National Development Plan.

We are also concerned about recent developments in the national debate relating to the proper role of our judiciary.

•    On 8 July, 2011 President Zuma warned that “the powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections”.  
•    He added that the government’s political opponents should not be able to subvert the popularly elected government by using the courts to “co-govern the country”.   
•    He later stated baldly that the government wanted to review the powers of the Constitutional Court.
•    It would appear that the power of the courts to review legislation and executive conduct is being questioned.  In an article on 16 April Adv Ramathlodi, the Deputy Minister of Correctional Services and member of the Judicial Service Commission, wrote that “judicial incursion into other spheres (of government) should happen only in exceptional and limited cases - if at all.” 
•    In addition, there are growing concerns that the Judicial Service Commission is more concerned with the political orientation of judicial candidates than with their independence, integrity, experience and knowledge of the law.  There are persistent allegations that the political majority on the JSC caucus separately and decide beforehand which candidates they will support and which they will reject.

It is not necessary to limit the powers of the courts to promote transformation.  The courts are not standing in the way of transformation.  Indeed, their judgments in many cases have been a spur to transformation – particularly with regard to the treatment of AIDS, the provision of housing and the recognition of the right of all citizens to vote.

Nearly all the cases that the government has lost in the courts have dealt with questions of power – and not with questions of transformation. They include decisions by the courts

•    in the Scorpions case to require the establishment of an independent investigating capability;
•    to protect the integrity of the national prosecuting authority by setting aside the appointment of adv Simelane; and
•    to support the Cape Bar Council’s contention that the JSC did not act correctly in the manner in which it failed to fill vacancies on the Cape bench last year.

To sum up:  the problems that government is experiencing with social and economic transformation do not lie with the Constitution or with the courts.

However, the most serious threat to our constitutional democracy at present, arises from developments surrounding Lt-General Richard Mdluli. They point to the possibility that things may be going very, very wrong in our National Prosecuting Authority and in sections of the South African Police Service.

We welcome Minister Nathi Mthethwa’s announcement on Wednesday that General Mdluli has been moved from his post as head of the Crime Intelligence Division. We also welcome the Minister’s decision to investigate allegations and counter-allegations by senior police officers regarding interference by the police in the political process.   

We note that the Inspector-General of Intelligence is carrying out an investigation into serious allegations against General Mdluli relating to widespread corruption in the Crime Intelligence Division. They include claims that he appointed no fewer than 23 friends and family members to jobs paid for by the Division and that he has made extensive use of official homes and and cars for his private use.

However, we are still very concerned about the manner in which the NPA has dropped fraud and murder charges against General Mdluli.

o    Last September, within days of his appointment as the NPA’s head of specialised commercial crimes, Adv Lawrence Mrwebi ordered the lifting of fraud charges against Gen Mdluli.
o    He did so over the objections of Adv Glynis Breytenbach who had been dealing with the prosection and who believes there is a prima facie case against Mdluli.  
o    Breytenbach has since been suspended by the NPA – and two attempts have reportedly been made to kill her. 
o    the murder charges against Gen Mdluli were dropped despite claims that the authorities involved were in possession of an independent legal opinion to the effect that the charges have prima facie validity;

Most of these allegations are based on media reports – and I am accordingly not in a position to confirm or refute them. The following, however, is indisputable:

•    Few of these revelations would have been made if the Protection of State Information Bill had already been enacted.
•    If the reports are accurate they constitute the most serious threat to our democracy and to the rule of law since 1994;
•    If politicians can decide who will be, and who will not be prosecuted there will no longer be any possibility of successfully fighting government involvement in  corruption or of holding government to account.  
•    Our democracy will be in serious danger if politicians can use the Police and the National Prosecuting Authority to undermine their opponents and to promote their own political careers and agendas.
•    The reports are sufficiently well-sourced and persistent to require their immediate and thorough investigation by a suitable, independent body - and preferably by a properly constituted and mandated Commission of Enquiry.  
•    In particular, and in addition to the enquiries that have been launched by the Inspector General of Intelligence and Minister Mthethwa, such a Commission of Enquiry should investigate the manner in which the NPA dropped murder and fraud charges against General Mdluli and the reasons for its decision to suspend Adv Breytenbach.

There are undoubtedly many members of the ANC who take pride in the movement’s finest traditions of integrity and propriety.  I would urge them to take the lead in calling for a Commission of Enquiry into these shocking allegations.

Finally, there is another threat to our Constitution that is, perhaps, the most insidious of all.  

It is our own apathy.  

It is our unwillingness to support our Constitution and to claim the rights that it guarantees.  

All of us continue with our daily lives: 
•    we take our kids to school and plan for the future; 
•    we contribute to the economy and try to achieve success in our careers; 
•    As any Sharks supporter would know - we exult in the successes - and despair at the failures - of our favourite sports teams;
•    we go to parties and entertain our friends; and 
•    we enjoy our leisure time and look forward to our next holiday.  

We seldom stop to think that virtually 
•    everything that we do; 
•    everything we own;
•    everything to which we aspire; 

depends ultimately on the preservation of our Constitution and the values, freedoms and rights that it guarantees.  

Somehow we continue to regard the Constitution as something peripheral to our lives; something to which we can turn our thoughts only when the need arises.

We must forget such attitudes.  

Our future happiness and prosperity and the future security of our children depends directly on the preservation of our Constitution. It is not something that people can simply delegate to this or that political party or this or that civil society organisation.  

For evil to prosper it is sufficient that good men should do nothing.  

Once a people has lost its freedom it is very difficult to win it back.

I call on you all to take active steps to support the Constitution.    
•    know what your rights are; 
•    claim them and insist that the equally valid rights of all other South Africans are respected; 
•    support organisations like our own Centre for Constitutional Rights that are upholding the Constitution; 
•    make the Constitution a central part of your thoughts and of your lives - because, believe me, it really should be.  

Support for the Constitution is not simply doing something for yet another good cause: 

•    It is the most appropriate and pressing protection of one’s own core interests of which I can think.  

Despite the warnings that I have given of the threats that confront our Constitution I remain an optimist. I am confident that many people in the ANC leadership share many of the concerns that I have expressed this morning. I am confident that great majorities from all our communities support the Constitution and its values. All of us now need to join hands 

•    in celebrating the many good things that we have achieved together since 1990.  
•    in reaffirming our support for our Constitution; and
•    in working together to realise its vision of human dignity; the achievement of equality and the enjoyment of all the human rights that it enshrines.


NewsAlert is sent by the FW de Klerk Foundation (Registration number: 031-061-NPO) 
Telephone : +27 (0)21 930 3622  |  Fax: +27 (0)21 930 3898 
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