Henry Pease sounds like a name conjured from a Victorian, 19th-century novel. In fact, he happens to be the vice-president of the National Assembly of Peru and chairperson of its most important committee, the constitutional review commission. The precision of his language, of his suit – he looks like the archetypal bank manager of Jane Austen vintage –
belies the fact that he is currently as stretched as a lycra spacesuit.
The day before I met with him, he had flown from Lima to the snow-topped volcano-surrounded city of Arequipa to receive the “Arequipa Declaration” – an agreement reached between the Consejo de la Prensa – an unusual body that represents both journalists and media owners – and the Peruvian military.
The declaration defines “national security” for the purposes of a narrow exemption to be contained in a new access to information law that should help open up government after the turgid secrecy of the Fujimori regime.
The challenge, says Pease, is multifarious. Peru is trying to evoke fundamental change on all fronts: its truth commission has just started work – provoking the same sort of controversies that equivalent bodies have prompted throughout the world.
It has what it calls a “dialogue”, which is really a public participation exercise, designed, with an unclear line of causality, to serve a parallel constitutional reform process, and which will take Pease to 27 different towns and cities in as many days over the next month. And, of course, it is rewriting its statute book with a plethora of “transformational” laws, including the draft access to information Bill.
Sound familiar? My own sense of nostalgia was acute. Peru, albeit without quite the same sense of romantic adventure or global attention and scale of technical support, is replicating the South African experience of 1995-1996.
That was a period that most human rights lawyers now regard as a golden age. A period in which South Africa, propelled upon a wave of international expectation and affection, wrote arguably the finest Constitution of the past century and one that (to a greater degree than its architects may have realised at the time) bridged the old century and the new.
In the past century human rights were, for the first time, put down on paper, enshrined from the ashes of the calamitous human conflict of Eric Hobsbawm’s Age of Extremes. Now, in the new century, these human rights must be enforced.
However much the African National Congress may regret their ambition, they created a constitutional laboratory that is revered throughout the civilised world. I know that there are a number of very important people in the party who now regret that they have to govern within the ambit of some of the rights granted in the Constitution. “What on Earth were we thinking of,” some ask, “when we granted all those rights?” One such individual is special investigation unit head Willie Hofmeyer, who is fond of joking semi-seriously that he is “an ex- human rights lawyer”.
The most adventurous part of the Constitution is its embrace of social and economic rights. The right to basic education, to adequate housing and, most topically, the right to access health care services. These rights are now being enforced. Last week it was the Treatment Action Campaign (TAC); and, according to a report last week in the Mail & Guardian, next week it could be an Education Lobby Group. And so South Africa is a frontier town in this experiment. Forget Mark Shuttleworth, the real adventure is in democracy and human rights.
Perhaps I should get out more. Get a hobby. Whatever. However sad I may sound, the greatest thrill I’ve had since Arsenal last won the league and cup double in England, was last Thursday and Friday in Braamfontein, of all places, at South Africa’s Constitutional Court.
I wanted every Afro-pessimist economist and London emerging-market maker, every Perth-bound white middle-class South African, every single last Doubting Thomas, to be crammed into the courtroom. They would have seen not just the rule of law and democracy in action, but something quite exquisite. This was not First World democracy. It was better – somewhere along the path towards Utopia.
The courtroom itself may not be perfect – the ceiling is low and, with its rows of bright lights, appears like an inverted airport runway, at the end of which the 11 justices sit in a gentle arc.
They are raised, but only just, so that a tall counsel such as Wim Trengove can address them virtually eye-to-eye. As anyone who has ever practised at the Bar will attest, these considerations are important. The downside of the layout from the advocate’s perspective is that there is nowhere to hide once the astounding intellectual curiosity of this particular Bench is aroused.
In the case of Marumo Moerane, the government’s senior counsel, this was exactly four-and-a-half minutes into his submission. From then on he was tossed about in a maelstrom of questions. The paucity of reasoning, of common sense, of human dignity, in government policy on nevirapene was thus exposed.
Like jets above Heathrow, the justices stack up, jostling to land the next interlocutory. There is scarcely time to draw breath before the next one is upon you. Yet there is a child-like and, thus, endearing quality to the intense curiosity of this set of judges. It is why the counsel who appear before them relish the experience. And, like children, few of the 11 are expert at disguising their feelings.
A yearning for clarity tells in the raised eyebrows of Judge Lewis Skweyiya. The acuteness of the jurisprudential challenge furrows Judge Kate O’Regan’s brow. And frustration at the illogic in the government’s position registers on the stony face of Judge Richard Goldstone.
Here is a court that, constituted through an open process of democratic selection, captures the pivotal nature of its role in South Africa’s transformation by its intellectual and professional diversity. Served by an expert Bar, a well-resourced library and other research infrastructure, it has the capacity to put the most potent controversy of the day to the full constitutional test.
There is even wit that comes, often, from Judge Johann Kriegler, who chooses to line his files up in front of him. A booming voice that combines rapier with jest emerges periodically from behind the barricade.
This court, and the test to which it subjects the issues of the day, is good, believe me. Very good. Peru would give an arm and a leg for half of it. Sustain it, and whatever the other many defects – profound societal inequalities and institutional weaknesses – this country’s democracy will not falter.
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