Saturday, 23 November 2019 15:16

Constitutionalism as an Instrument for Transformation
 
 
The 17th Nelson Mandela Annual Lecture
Chief Justice Mogoeng Mogoeng 
Hosted by the Nelson Mandela Foundation
University of Johannesburg, Soweto Campus
Saturday, 23 November 2019.

Acknowledgements and expression of appreciation
 
Programme Director; 
The Chairman of the Nelson Mandela Foundation, Professor Ndebele;
Trustees of the Nelson Mandela Foundation as well as retiring Trustees;
CEO of the Nelson Mandela Foundation, Mr Sello Hatang;
The Mandela family; 
Deputy Chief Justice of the Republic, Justice Ray Zondo;
Acting Deputy Chief Justice, Justice Sisi Khampepe;
Cabinet Ministers present; 
Members of the Diplomatic Corps;
Members of the Judiciary;
Deputy Ministers;
MEC’s;
Captains of Industries in particular; Donors of the Nelson Mandela Foundation; Samsung, Brand SA, ABSA, University of Johannesburg and Anglo American; Struggle Veterans, Ms Sophia Williams de Bruyn and Adv George Bizos, SC; Members of the Legal Profession; Members of the Religious Community Distinguished guests; Ladies and gentlemen.

 

President Nelson Mandela said “I am not a saint, unless you think of a saint as a sinner who keeps on trying. Meaning that he too could and did err. None of us should therefore make a disingenuous attempt to undermine his hitherto unmatched leadership credentials on the basis that he erred in one or other respect, as if he ever held himself out as immune to error. And none of whatever errors he might have made can in the very least detract from the profundity of his contribution to the essence of practical ethical and selfless leadership. Generations to come, who genuinely care about fellow human beings will ceaselessly drink from Madiba’s well of wisdom-laden and ethical leadership.
 
This lecture is such an opportunity for all of us. And it allows us to be reminded of what Madiba’s views were on the topic assigned to me “Constitutionalism as an Instrument for Transformation”.  Because this is the Nelson Mandela Memorial Lecture, I have decided to have us hear more of what he had to say about the topic, and will hopefully share less of my reflections. 
 
 
At the signing of the Constitution, in Sharpeville, on 10 December 1996, President Mandela said:  “As we close a chapter of exclusion and a chapter of a heroic struggle, we reaffirm our determination to build a society of which each of us can be proud, as South Africans, as Africans, and as citizens of the world. As your first democratically elected President I feel honoured and humbled by the responsibility of signing into law a text that embodies our nation's highest aspirations.”
 
The Constitution is a transformative tool. An instrument with which to build a society. And that is the society that none of us would have any reason to be ashamed of. If you want to know what kind of a South Africa, Africa and global village “we the people of South Africa” desire and plan to have, examine our Constitution. It is a codification of Our Supreme hopes and expectations. 

Still in Sharpeville, Madiba went on to say: “Today we cross a critical threshold.
 
(a) Let us now, drawing strength from the unity which we have forged, together grasp the opportunities and realise the vision enshrined in this constitution. Let us give practical recognition to the injustices of the past, by building a future based on equality and social justice”.
 
We need to be strong and united as the people of South Africa. We never used to be united as black and white people, men and women of this country for the realisation of what President Mandela refers to as “the vision enshrined in this Constitution”. But we must “give practical expression to the injustices of the past”. Anybody who says don’t blame anything on colonialism and apartheid anymore is effectively trying to dispute this indisputable assertion by Madiba. We can’t blame everything on these fantastically unjust systems, but they are largely to blame for the racially and gender-based iniquities, injustices and inequalities that obtain in South Africa today. We have to measure our progress with reference to these systems. The future Madiba said we must use the Constitution to build, is one based on equality and justice. For this all citizens bear the responsibility-both human and corporate citizens. We all have an obligation to build a fair and just country.
 
(b) Still on Unity, Madiba said:
 
“Let us nurture our national unity by recognising, with respect and joy, the languages, cultures and religions of South Africa in all their diversity”. 

When Madiba signed the Constitution, black and white South Africans were deeply divided. Tribalism had also been institutionalized for a long time as was ethnicity. To unite we must tolerate and even learn the cultures and languages of others. And teach that to our children. We must also allow others to practice their faith as they know it, as long as it does no harm to anybody. Tolerance is key. Section 15 gives us freedom of religion, belief and opinion.
 
 Madiba also said:  “Let tolerance for one another's views create the peaceful conditions which give space for the best in all of us to find expression and to flourish”. 
 
There is a growing tendency to insult, mock or dehumanise and even attack the character of those who hold views different from ours. Sections 15 and 16 of the Constitution gives us this right to think and express ourselves freely.
 
(c) And he said “Above all, let us work together in striving to banish homeless-ness; illiteracy; hunger and disease. In all sectors of our society - workers and employers; government and civil society; people of all religions; teachers and students; in our cities, towns and rural areas, from north to south and east to west - let us join hands for peace and prosperity. In so doing we will redeem the faith which fired those whose blood drenched the soil of Sharpeville and elsewhere in our country and beyond. Today we humbly pay tribute to them in a special way. This is a monument to their heroism. Today, together as South Africans from all walks of life and from virtually every school of political thought, we reclaim the unity that the Vereeniging of nine decades ago sought to deny. We give life to our nation's prayer for freedom regained and continent reborn;  “God bless South Africa; Nkosi Sikelel' iAfrika; Morena boloka sechaba sa heso; God seen Suid-Afrika”
 
The Constitution is a powerful weapon against homelessness (section 26), illiteracy, (section 29) hunger and disease (section 27).
 
 
Whatever business, labour, government and civil society does, must take account of the need to get more people to enjoy these benefits. We all must work together to accomplish this assignment. 
 
People died in Sharpeville and elsewhere in the country to end these inhuman conditions. The Constitution was signed in Sharpeville to remind us of these realities – criminality against humanity in the Name of God. The signing of our Constitution was meant to turn the Constitution into a monument to the heroism of the people of Sharpeville and elsewhere in the country.
 
National prayer: We must pray for our country!
 
When Madiba inaugurated the Constitutional Court in 1995, he said:  “The last time I appeared in court was to hear whether or not I was going to be sentenced to death. Fortunately for myself and my colleagues we were not. Today I rise not as an accused but on behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy.  It is not just our blessings that we give to their work, confident as we are in their integrity and commitment to justice. It is an institution that we establish - South Africa’s first Constitutional Court.”  
 
We owe thanks to the Constitutional Court which has proved a true and fearless custodian of our constitutional agreements. One of the things one discovers when coming into office is that there is no shortage of rubber stamps. South Africans did not establish this court to be another rubber stamp. We expect you to be creative and independent. We expect you to be true to the oath you have just sworn”. 
 
Committed to the point of risking his life. No appeal. 

“On the Judiciary hinges the future of our democracy, strengthen. Don’t weaken. Don’t caucus to have a less able candidate to serve sectional interests. Must be independent. They must be true to the oath”. No lobbying. No capture. Judges and Magistrates must be men and women of integrity who are committed to justice. Otherwise, public confidence – only real source of our respect and credibility will be lost. Judges must not be rubber stamps. To use the Constitution as an effective instrument for change, the impartiality of Judicial Officers must never be legitimately suspect. Judgments must always be easy to understand.
 
“Constitutionalism means that no office and no institution can be higher than the law. The highest and the most humble in the land all, without exception, owe allegiance to the same document, the same principles. It does not matter whether you are black or white, male or female, young or old; whether you speak Tswana or Afrikaans; whether you are rich or poor or ride in a smart new car or walk barefoot; whether you wear a uniform or are locked up in a cell. We all have certain basic rights, and those fundamental rights are set out in the Constitution.”
 
Section 24 of our Constitution guarantees us the right to an environment that is not harmful to our wealth or well-being. A protected environment preserved for future generations, free of pollution and ecological degradation. We don’t seem to have that environment. Toxicity, Aljazeera documentary – Johannesburg. Our rivers. Our oceans. Fauna and Flora. Someone is not doing their job. Who are they? Need for real Consequence Management.

Madiba had this in mind when he said this to Constitutional Court Judges: 

 
“I am sure that I am speaking for all of [the people] when I say that the basic reasons for your decisions should be spelt out in a language that all can understand. 
“The authority of government comes from the people through the Constitution. The people speak through the Constitution.” 
 
Power belongs to the people. Sections 42 and 55 of the Constitution says people govern through Parliament and hold specific State organs accountable through Parliament.To transform through Parliament, ensure that people get elected in a way that facilitates accountability. Seek to understand your rights and duties. Speak out and act lawfully against any failure to fulfil constitutional obligations.
 
 
(Constitutional Court, 1995) “Our constitution rests on three fundamental pillars: Parliament, the Government, and the Constitutional Court. Each has its specific role to play. Take away or undermine any, and you weaken the whole structure. That is why your independence is guaranteed in the constitution.”
 
No Arm of the State must be undermined or treated as a junior partner in the governance of the State. That is an unconstitutional attitude. Undermining or weakening any Arm will weaken governance and rule out good governance.Each Arm must be enabled to be functionally and institutionally independent.It must worry all of us whenever there is manifest resistance to the full independence of any or attempts to keep it under the control of another. Let the Constitution and our democracy work for all of us. That is how to transform using the Constitution as an instrument.
 
Addressing Leaders in the Free State on 17 December 1994, President Mandela said: 

“Freedom should not be understood to mean leadership positions or even appointments to top positions. It must be understood as the transformation of the lives of ordinary people in the hostels and the ghettos; in the squatter camps; on the farms and in the mine compounds. It means constant consultation between leaders and members of their organisation; it demands of us to be in constant touch with the people, to understand their needs, hopes and fears; and to work together with them to improve their conditions.”
 
Transformative constitutionalism is frustrated by: The love for power or positions, even those we are hopelessly unqualified for.The love for money that makes one forget why they occupy the position in the first place.The love for fame and media coverage which could cause principles and constitutional and ethical obligations to be disregarded in exchange for what we want. Treating people as fools to be deceived and tools to be used for the advancement of self or sections. Shameless disregard for the constitutional imperatives that could transform society for the better.
 
(Constitutional Court, 1995) “We have no doubt that the nation is committed irreversibly to acknowledging diversity and respecting the basic rights of everyone. The rights and freedoms [the Constitution] proclaims are not simply words taken from hallowed texts in other parts of the world. They represent our endeavours, and our dreams of a free and just society.”
 
Our dreams and highest aspirations are contained in the Constitution.They are, among others, Equality Non-racialism and non-sexism.The improvement of the quality of life each citizen.

Freeing the business, educational, artistic, political potential of each person. Irreversible acknowledgement of diversity and respect for human rights assumes that nobody respects the Constitution selectively and would seek to use it to undermine its availability and potency as a transformative tool. The Constitution demands as Mandela indicated the eradication of the vestiges of colonialism and apartheid. Meaning, nobody who is truly committed to transformative constitutionalism would want to have transformation defined in order to undermine the imperative. No such person would use the Constitution to retain toxic colonialism and apartheid tendencies or practices under some sugar-coated pretences. No true Constitutional democrat would resist the entry of the previously excluded into the previously preserved economic, educational and property space.

At the signing of the final Constitution, President Mandela said: “Those who sought their own freedom in the domination of others were doomed in time to ignominious failure. Out of such experience was born the understanding that there could be no LASTING PEACE, no LASTING SECURITY, NO PROSPERITY in this land unless all enjoyed freedom and JUSTICE as equals.”
 
We need lasting peace, security and prosperity.  But, we will never have it UNLESS ALL ENJOY JUSTICE and even FREEDOM OF SPEECH AS EQUALS – NOT SUBJECT TO THE APPROVAL OF SOME ASPIRANT KINGMAKERS OR REAL CAPTORS OF THE POWERFUL, THE HIGH AND MIGHTY. You cannot be ethical or have any integrity worth mentioning and be in the business of systematically using the Constitution to fight transformation from the injustices of the past. End racism and sexism.Resolve the land issue.

We need to join hands to ensure that those who were institutionally excluded have what it takes or potential are allowed to ascend to the higher echelons of the corporate sector. Equal pay opportunities. Equal pay for same job.
 
LOVE (Mohammed Ali –The G.O.A.T, 2001)  “I’ve seen the whole world. I learn something from people everywhere. There’s truth in Hinduism, Christianity, Islam, all religions.  And in just plain talking. The only religion that matters is the real religion – love.”
 
Mohammed Ali, Madiba’s friend is saying, like Madiba and our Constitution: Don’t undermine freedom of religion. Don’t allow religion to divide us. It is a fundamental right we each must enjoy. Be tolerant. Let South Africa truly belong to all of us who live in it, UNITED IN OUR DIVERSITY. More importantly, let us LOVE one another regardless of their gender. Madiba was driven by his love for men, women and children of all religions to put his freedom, convenience and life on the line. Anybody can love. Love is the way to heal. Love is an instrument for fostering unity. Love is an instrument for peace. Love is an antidote to greed and corruption. Love can root our crime.  As the Bible says “love does no harm to a neighbour, therefore love is the fulfilment of the law”. Romans 13:10
 
HOPE (Letter from Nelson Mandela to his daughters, Zeni and Zindzi,  4 February 1969) “Zindzi says her heart is sore because I am not at home and wants to know when I will come back. I do not know, my darlings, when I will return. You will remember that in the letter I wrote in 1966, I told you that the white Judge had said I should stay in jail for the rest of my life. It may be long before I come back, it may be soon. Nobody knows when it will be, not even the Judge who said I should be kept here. But I am certain that one day I will be back at home to live in happiness with you until the end of my days. Do not worry about me now. I am happy, well and full of strength and HOPE´”.
 
Madiba was captured. Thoroughly captured. BY HOPE. He was sentenced to undergo life imprisonment in circumstances where parole was a known impossibility. BUT, he was happy, confident, strong and HOPEFUL that he would be released. Are you hopeless because of the economic situation in our country, climate change, racism, tribalism, gender discrimination, employment inequality or job reservation, the land issue? Let us learn from Madiba. Be happy, strong, sharply focussed on contributing to the realisation of our constitutional dream, do what you can to that end. And be hopeful.
 
IDEALS (Nelson Mandela on 20 April 1964 at the Rivonia Trial) To use the Constitution as an instrument for transformation, we need to embrace the ideal of President Mandela. At the time when he was likely to be sentenced to death, he had this to say, in court:
 
“During my lifetime I have dedicated my life to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all people will live together in harmony and with equal opportunities. It is an ideal for which I hope to live for and to see realized. But, My Lord, if it needs to be, it is an ideal for which I am prepared to die.”

May we all cherish the ideal of Madiba. May we truly and wholly, not selectively, dedicate the rest of our lives to the attainment of true and comprehensive freedom.  Freedom from ignorance.  Freedom from manipulation.  Freedom from overt and subtle and sophisticated intimidation. Freedom from exclusion. Freedom from sexism, racism, ethnicity, tribalism, xenophobia and all forms of unjust discrimination and marginalisation. Access to genuine equal opportunities.The attainment of harmony.Let us pursue the ideals entrenched in our Constitution, even at the risk of massive reputational damage, financial loss and death.