We should have been celebrating the 10year anniversary of an extraordinary document, the Constitution. Instead, we were all glued to the television or radio. Inevitably, the verdict totally eclipsed the anniversary; Jacob Zuma stole the show — an exquisitely painful irony, yet also strangely apt.
What occurred inside and outside the Johannesburg courtroom was a microcosm of contemporary South Africa — a turbulent mixture of the good, the bad and the ugly, resonant with so many of the inherent and largely unresolved tensions within the Constitution itself.
The rule of law held firm; despite the intense political pressures the defendant got an apparently fair trial; his supporters exercised their right to free association; however inadequately and at times clumsily they performed their task, the media were at least free to do so. This was the good stuff.
A powerful man was able to raise the necessary big money — though it seems the donors included people with distinctly unsavoury political agendas — to provide himself with a powerful legal team. An ultimately effective yet almost wholly unedifying defence was constructed, a defence that made one gulp with astonishment at the foolishness it revealed. This was the bad stuff.
As for the ugly, well, in the process of all this, human dignity — the core value that underpins everything in the Constitution — was diminished to the point of extinction.
The dignity of the complainant was also crushed, not just in terms of her evidence, which is one thing, but in terms of her treatment inside and especially outside of court. When people become so desperate that they pin all their hopes for the future on so flawed a leader, they lose their dignity. In the process of defending himself, so too did Zuma sacrifice his own dignity.
A powerful man walks. A woman with a pathetic and abusive past, a symbolic victim if ever there was one of the stresses of a life in exile because of apartheid, scuttles off into a still more uncertain future. The poor majority presses its nose to the glass and watches and waits.
So the trial serves, thus, to link the then with the now, the liberating joy of Constitution-making with the suffocating reality of the challenge of realising the vision it promises. The clash of constitutional modernity against traditional culture, the reminder that the Constitution is a piece of paper that must still find the wherewithal to withstand social and political forces that may care little for its lofty aspirations.
As to his apparently unabated presidential ambitions, it is simply impossible to have any faith that Zuma would defend a Constitution whose values, by his actions, he so disdains. His credibility is shredded. That he refuses to see this merely compounds his error of judgement.
The heady days of early May 1996 seem a very long time ago. No one who was there watching the final days and long nights of negotiation will ever forget the spirit that infused the process — the complete determination to complete an epic journey and reach a destination that would serve a complex, divided society.
It was, by definition, a founding, crowning moment. It was the end of a long process that had, by May 1996, gathered a credibility so profound that while there may still be plenty of people in this country who would quibble over some of things contained within the Constitution, few if any would be able to or even wish to muster an argument that the Constitution is anything other than a legitimate expression of a nation’s dream for the future.
The decision of National Assembly Speaker Baleka Mbete, on Monday, to prevent opposition leaders to speak in the joint sitting of Parliament to commemorate the 10-year anniversary not only devalued the occasion but ran contrary to one of the most important foundational principles: the notion of inclusiveness and protection of the rights of minorities. The speaker’s decision was a poor and mean-spirited one and should rightly be condemned.
As Sandy Liebenberg reminds us (see below), the Constitution is supposed to be a transformative document. It is not there only to hold a democratic society together, with clear rules of the game, but also to ensure that it changes. The socio-economic rights are crucial to this, they represent a bold experiment that has not always been matched by the jurisprudential appetite of the courts.
But they are playing a significant role in shifting power relations and redistributing resources, which is the crux of the transformational matter. Only a conservative with a narrow understanding of this fundamental constitutional purpose could have delivered a speech entitled Our Constitutional Democracy Today without once mentioning socio-economic rights — as Democratic Alliance leader Tony Leon did last week.
The African Peer Review Mechanism process, as Judith February rightly points out (see overleaf), has helped us see the wood for the trees. South Africa has made huge advances; there is a sound constitutional infrastructure in place. Yet, there is no room for complacency. Citizens must continue to claim their rights and assert the values that underlie the Constitution if it is be as resilient as it needs to be.
As the Zuma case suggests, on one level the state is performing its part of the bargain at times more clearly than the citizenry. The Constitutional Court, a justly admired institution, may soon become an ‘ordinary” court of law — and appropriately so, argues Iain Currie (see overleaf). But if an extraordinary Constitution — the outcome of an extraordinary process in the first half of the 1990s — is to become an ‘ordinary” part of the lives of every South African, there is a long way to go.
Like a batsman who retakes his guard on reaching a half-century to help focus his mind on the rest of the job at hand, marking and celebrating 10 years of a remarkable Constitution is one important way of making a collective commitment to its idealism. To allow the ‘reality” of power struggles today to blot out the great prize of the liberation struggle, South Africa’s constitutional order, would be to concede defeat in the contemporary struggle for human dignity. Nothing and no one is bigger than the Constitution. Nothing and no one must be allowed to stand in its way.