Serjeant at the Bar
Human Rights Day is a cause for considerable satisfaction among all South Africans. Forty-one years ago the massacre at Sharpeville occurred because we were governed by a system that preferred to kill opponents rather than permit dissent. The significance of Human Rights Day is that it personifies our change from a government of repression to one of constitutional deliberation. Our politics can no longer be conducted by the force of the gun barrel but only in terms of constitutional values that frame the scope of political activity.
To have achieved this fundamental change in so short a period is cause for enormous celebration. It paves the way for the rest of the continent and holds up Robert Mugabe’s neo-National Party model of government in sharp and disgraceful relief, Minister of Mineral and Energy Affairs Penuell Maduna’s attempt to convince us to the contrary about Zimbabwe notwithstanding. But our achievement is diminished by our inability or unwillingness to educate our own people, let alone the continent of the importance of a constitutional model of government.
During the constitutional negotiations, both for the interim and final Constitutions, there was a considerable amount of public education on television, radio and the print media as to the nature and scope of a Constitution in general and a Bill of Rights in particular. Now there is silence. And the silence means that the public have very little clue as to the promise and potential of our Constitution as they do of the manner in which our courts operate. We will produce a generation of children who will not even have the remotest understanding of our Constitution and why it is so important to be ruled in this fashion.
Last week the Legal Resources Centre celebrated 21 years in business. Other than the centre and a couple of well-meaning NGOs, the poor, who are most in need of constitutional protection not only from various arms of the government but also from elements of the private sector that wield enormous power have no access to means by which their rights can be enforced. And even when they do win a victory, what then? Has any newspaper or electronic media bothered to check whether the community at Wallacedene, which won a famous victory in the Constitutional Court (the Grootboom case), has been provided with tangible assistance following the litigation?
Other than the judiciary, which eventually made the necessary public statement, and the Bar, little has been heard from the legal community regarding Zimbabwe. In particular, the academic legal community was pathetic. Quick to accept lucrative consultancy contracts from the government and even quicker to pontificate at academic occasions overseas, academics offer little to the development of human rights awareness in this country.
A couple of weeks ago journalist Max du Preez criticised Shadrack Gutto, who teaches at Wits University, as being a dial-a-quote academic who was quick to supply facile arguments that were supportive of the government. But this criticism points to a deeper malaise a lack of a critical engagement by academic lawyers with the potential of our Constitution. It is to be found in the sterility of most articles in academic journals, the lack of op-ed articles, the lack of resource for the media to mount the kind of educational campaign needed to promote the Constitution.
It may well be that this poverty of performance is to be located in broader contexts. Universities no longer appear to offer much in the way of public debate of a truly intellectual kind. Is it uncharitable to remark that Wits, one our great institutions, is soon to be led by someone whose greatest claim seems to be fund-raising expertise? Is this the symptom of our lack of intellectual imagination? Openness is no longer seen as such an important virtue. How else does one explain the unanimous decision of the Judicial Service Commission to refuse televised coverage (or at least promote radio coverage) of judicial appointments? By this decision the public are denied an opportunity to see and hear the candidates for office as custodians of our constitutional system.
So we have much to celebrate on Human Rights Day. But we have much upon which to reflect if we are to promote the kind of awareness of the Constitution that can make it a mechanism for transformation that is viable and enduring.