In a few months South Africa will celebrate the first decade of constitutional democracy. To grasp this achievement South Africans only need to cast their minds back about 15 years before the commencement of the first possibility of political negotiation.
PW Botha ruled by dint of emergency powers, thousands were detained without trial, newspapers were banned or censored savagely, and the debt standstill that followed the action of foreign banks highlighted the national insolvency. The country was propelled to the abyss.
The possibility of meaningful political activity or even of modestly critical public debate was at war with the ”government” of the day. The rule of law was no longer an operative principle. The highest court, the Appeal Court, had become an agent of repression as it rejected sound principles of common law favouring the freedom of the individual and the liberal state in favour of the total onslaught; the ideology of the Bothas, Malans and Vloks.
Ironically, in the context of recent developments, Judge Joos Hefer was the leading legal intellectual on that court, writing a number of key judgements that helped sustain the ”legality of the emergency”. Not for nothing did two distinguished human rights lawyers, Fink Haysom and Clive Plaskett, call the appellate division’s judgements in this context a war against law.
Manifestly we (including some members of that judiciary) have come a long way in the decade since 1994. The question that this column wishes to pose in the period leading up to the 10-year celebrations is a simply phrased but complex one — how far have we, as a nation, travelled on the road to the society promised by our Constitution? In posing this question, the argument advanced so persuasively by Vincent Maphai (”Transition’s long sunset”, January 9) needs to considered — namely, that transformation of our society is not an aim that can be frozen in time, but must be analysed as a process in that democracy as a contested concept is never fully attained.
Maphai suggests that the country has achieved a constitutional solidity and that the greater challenges in the next decade will turn upon redressing the economic legacies of apartheid. If this is correct, it may be asked why a national debate on the state of our constitutional progress is at all necessary.
The answer is to be found in the very idea of transforming in the broad direction suggested by the constitutional text; being a society that works towards a greater degree of egalitarianism — based on the three key values of dignity, equality and freedom, interpreted so that each value is congruent with the other two and in which freedom of politics and of want cannot be easily separated.
Turning to equality, the past decade has seen gays and lesbians employ the Constitution effectively to make us, at least in law, a far less homophobic society. But has our equality clause done the same for women and the poor? Some progress has been achieved in the area of socio-economic rights, but the number of court challenges are pitiful when compared to the scale of economic deprivation and paucity of delivery. To what extent can it be claimed that the intricately drafted property clause has been used to protect the landless and those most vulnerable?
To what extent can it be concluded that public debate about key issues of delivery, accountability and the nature of economic policy has reflected the aspiration of the Constitution that we become an open and deliberative society? Other than the heroic efforts of the Treatment Action Campaign, can it be said that public debate is more vigorous than it was a decade ago? Have the war cries of racism, Uncle Tom and lack of patriotism effectively reduced the public’s willingness to exercise its constitutional rights of public freedom?
No evaluation of our progress can take place without some mention of crime. To what extent has crime undermined the commitments made so boldly in the 1996 constitutional text to a due process form of criminal justice?
The debate should extend to judicial performance. Considerable progress has been made to ensure that the judiciary is reflective of our demography. Although much still remains to be done, the more important question concerns the performance of the judiciary in changing the nature of our legal system from the racism, sexism and arid formalism that characterised apartheid law.
In a number of columns during the past year critical comment has been levelled against judgements delivered, particularly by the Supreme Court of Appeal, which have appeared to be more committed to old-style formalism than to the development of legal principles that underpin a society based on human dignity, equality and freedom. The judiciary must also be held to account.
This column will seek to address these and related issues in the next few months in the hope that it may make a modest contribution to a rational national debate on our most important national text. By employing the text in this way, we may be able to counter the irrationality and hatred that has, like a cancer, threatened to destroy the possibility of a robust, but reasoned, public discourse.