South Africa has 11 official languages, but we need a new language to capture the soul of the new Constitution, writes Etienne MureinikResponding to the just published working draft of the final Constitution, Bafana Khumalo regrets the lack of “phrases that roll easily off the tongue of a voice artist” (Mail & Guardian, December 1, 1995).
Writing about the interim Constitution, Sunday Times editor Ken Owen has also derided its phrasing as pedestrian, and mourned the absence of majestic and moving language.
Are these the seeds of a grassroots revolution in support of a pompous Constitution? Or is there a genuine need for language that can catch the soul of this long and difficult document in a way that wins the allegiance of all South Africans?
If there is, the place for it is in the as yet unwritten preamble. The preamble is the Constitution’s mission statement.
A preamble to inspire South Africans with loyalty to the Constitution must satisfy at least three conditions.
l First, it must unite the nation. So statements like “In humble submission to Almighty God”, with which the preamble to the interim Constitution opens, must go. They imply that this is not a Constitution for all South Africans, only for the ones who are religious and monotheistic.
l Secondly, it must be simple. Under the guidance of a Canadian expert, the working draft has been “plain-languaged”. All the legalese has been taken out. No more “heretofores”, “pertainings” or “upon such conditions as the appropriate authority may deem fit”.
Although language laundered in this way sometimes loses its precision, usually it is much more understandable and accessible.
That means that the customary opening twitch of the standard preamble — “whereas” — must also go. As must much of the other wording of the preamble in the interim Constitution. Such as: “whereas it is necessary for such purposes that provision should be made for … the restructuring and continued governance ….”
l Thirdly, the preamble must capture the central values of the Constitution. What are
No one can doubt that our constitutions — both interim and final — are instruments for ending and undoing apartheid. That makes equality a central constitutional goal.
It is not just that the constitutions create special bodies focused on fighting discrimination, such as the Gender Equality Commission, or that the guarantee of equality in the Bill of Rights is exceptionally extensive. It is also that the ideal of equality is invoked so often as to make it a central theme.
The unusually long list of liberties — not stopping, for instance, at the freedoms of expression and the press, as is normal, but reinforcing them also with the freedoms of thought and opinion — makes freedom also a central theme.
Another core value is accountability — the need for those who wield power to justify their decisions.
Nowhere is that value more conspicuous than in the very process of adopting the final Constitution. That Constitution cannot come into force until the Constitutional Court certifies that it complies with the Constitutional Principles enacted in the interim Constitution.
The Constitutional Principles are a higher- order table of values. They require the final Constitution to guarantee the separation of powers, judicial independence, checks and balances to ensure governmental responsiveness, the allocation of power to the most effective level of government, fair labour practices, and so on.
So the principles are a super-Constitution. If the Constitutional Assembly wants its proposed text to become the new Constitution, it must justify that text, to the satisfaction of the Constitutional Court, in terms of the super- Constitution. That makes even our constitution-makers accountable to a court of
This is a very special way of writing a constitution, and it puts the ideals of justification and accountability at centre stage. Their importance is buttressed by other special features of both the interim and the draft final constitutions, such as the right to justifiable or reasonable official decision-making, and the right to written reasons for officials’ decisions.
This stress on justification and accountability is as much of a response to our past as is the emphasis on equality. Just as the prominence of equality in these constitutions is an answer to a discriminatory history, so the centrality of justification is an answer to an authoritarian history.
It answers a history in which governments relied on the authority of law or of force, without respecting the obligation to explain their actions to the governed.
A supplementary answer is the weight given in the constitutions to the ideal of openness. Openness buttresses accountability. An open government will find it more difficult to avoid justifying its decisions than a secretive one.
Openness is central because the courts are instructed to interpret the Bill of Rights so as to promote the values of an “open and democratic society based on freedom and equality”. So they must promote not just any old kind of democracy, but the special kind which merits being called an open democracy.
Nor are the courts permitted to recognise a legal limitation on a right in the Bill of Rights unless the limitation is acceptable in an open democracy. And then there is a special constitutional right of access to government
So the core values of the Constitution are equality, freedom, accountability or justification, and openness.
Above, then, is my first stab at the preamble. It has already been plain-languaged. Please do not put it into the Canadian plain-languaging laundromat. You might ruin the fabric.
# The interim preamble
In humble submission to Almighty God,
We the people of South Africa declare that — – WHEREAS there is a need to create a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms;
AND WHEREAS in order to secure the achievement of this goal, elected representatives of all the people of South Africa should be mandated to adopt a new Constitution in accordance with a solemn pact recorded as Constitutional
AND WHEREAS it is necessary for such purposes that provision should be made for the promotion of national unity and the restructuring and continued governance of South Africa while an elected Constitutional Assembly draws up a final Constitution;
NOW THEREFORE the following provisions are adopted as the Constitution of the Republic of South Africa.
# Mureinik’s preamble
We, the first generation of free and equal South Africans, bequeath this instrument of justice to you who are to follow us.
We have tried here to make an enduring machine to help build democracy in our time and yours; but we are moved also by our own recent past.
We have lived through an age when some of us dominated and abused others; now we are equal, and we have promised one another the respect due to equals.
We have suffered governments that ruled over us; now we are determined to have a government that rules for us.
We have suffered governments who thought it enough that their power had the authority of law or force; now we are determined to have a government that justifies its actions to us, and is accountable to us.
We have suffered governments who concealed their iniquity behind secrecy; now we are determined to make government open, and to live in an open society.
We give you this, our best effort to build the foundation of a free and open democracy of equals, in trust that you will interpret it to make of it a better foundation.
We therefore enact this Constitution to be the fundamental law of all South Africans.
# Write a new preamble
WHEREAS the Mail & Guardian believes that our readers can devise a suitable, stirring but simple preamble to our new Constitution;
AND WHEREAS you can send your draft of no more than 250 words, and you will be in line to win a R500 book voucher;
AND WHEREAS entries will be judged by:
l Cyril Ramaphosa, Constitutional Assembly chairperson and secretary-general, African National Congress
l Etienne Mureinik, professor, School of Law, University of the Witwatersrand;
NOW THEREFORE entries must be received at the Mail & Guardian by Monday, January 15 1996.
Send them to: Constitution Competition, PO Box 32362, Braamfontein 2017 or fax (011) 403-
The judges’ decisions will be final. The winners will be announced in the M&G of Friday, February 23 1996.