The late Ismail Mahomed, a former chief justice, once described the Constitution of a nation as more than a simple statute that mechanically defines the structure of government. He saw it rather as a “mirror reflecting the national soul”, the identification of the nation’s ideals and aspirations; the articulation of the values bonding its people and disciplining its government. He went on to stress the importance of it being a product of consensus because it is such a fundamental document and the basis upon which all authority must be exercised.
Extensive consultation and much effort went into the making of the South African Constitution to achieve as much agreement on it as possible. It can truly be regarded as a joint project of the South African people. For the first time in our history, we had a foundational document that legitimately constituted the basis upon which all governmental authority must be exercised. This Constitution is the supreme law of the country and the exercise of power must only be done in a manner that does not offend its provisions.
The “national soul” that we see reflected in this mirror is one that espouses non-racism and non-sexism, that upholds the rule of law, democratic ideals and the foundational values of human dignity, the achievement of equality and the advancement of human rights and freedoms. These are the ideals we have committed ourselves to.
We are, however, a society in transition, hopefully moving towards the full realisation of these ideals. The questions we ask ourselves as we mark 10 years of the Constitution relate to the pace at which we are moving and the distance that still remains before we reach the desired destination, when the reality of our everyday lives will fully match the reflection in the mirror.
What is the state of our health as an emerging nation? A number of factors indicate that our democracy is alive and well. The multiparty parliamentary system has fared reasonably well and structures have been set up to hold MPs and other public representatives and officials to account; regular elections, which have been free and fair, have been held; institutions to facilitate the advancement and protection of fundamental rights and equality have been set up; the media and other organs of civil society go about their work freely and, to a large extent, effectively.
As an institution the courts, whose function it is to resolve legal disputes and to ensure that the extensive powers of government are not abused, are carrying out their tasks effectively. This has been possible because of the guarantees of a legal system that provides for an independent judiciary, which commands the respect both of government and the general population.
A large part of the work of the courts relates to constitutional litigation and the interpretation and protection of human rights as contained in the Bill of Rights. But in a country riddled with serious crime, especially against vulnerable groups such as women and children, some of the most important work of the courts is in the resolution of the serious everyday concerns and disputes of our people.
The challenge thus is to ensure that the rights in the Bill of Rights become a reality for all. It is necessary that the challenges facing the administration of justice and the courts be met. A serious effort needs to be directed at facilitating, for the ordinary people of our communities, adequate access to justice and the means to vindicate their rights.
In spite of the phenomenal strides that our country has made in the last 10 years, we still suffer from massive problems. Poverty and unemployment, crime and corruption, HIV/Aids and lack of basic resources are but a few of the evils that continue to delay fulfilment of our constitutional dream. Many of these crises will play themselves out in the administration of justice.
It is in this context that the principle of an independent judiciary goes to the very heart of sustainable constitutional democracy based on the rule of law. Courts can only be able to do their work effectively and efficiently if judges and all judicial officers are not only sensitive and responsive to the needs of society, but are also given the space to do their work without fear, favour or prejudice. This calls for a calm atmosphere within which to work and the avoidance, by both society and government authorities, of attempts to unduly influence the decision-making role of the courts.
Despite its centrality to our young country, the wisdom of its provisions and its power as an instrument for change, the Constitution is not a magic wand that can sweep away the evils that history has burdened us with without any effort on our part. The Constitution is a call and a guide to a better place. But we must follow it with the same energy and commitment with which we fought against apartheid.
If the first 10 years of the Constitution have been devoted largely to goal-setting and institution-building, the next decade will require a consolidation of the positive developments and achievements, as well as a more resolute effort to overcome the many difficulties that still confront us to make the ideals of the Constitution a living reality for all.
Pius Langa is Chief Justice of South Africa