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10 May 2017 15:03
Courts are the last line of defence. To give life to our constitutional values we need a legislature and an executive to take their mandate seriously. (Mike Hutchings, Reuters)
Former minister and ANC stalwart Kader Asmal spoke openly and courageously about a range of issues and today, six years after his death, these issues remain, said former finance minister Trevor Manuel in his address on “Moral Courage and Ethical Leadership in the ANC” at the Kader Asmal Memorial Lecture in Cape Town last weekend.
“There are two examples I want to mention, where the outcomes require a very special and extensive debate. The first of these was the immense work he (Kader) put into the drafting of the Executive Ethics Code.
This is the piece of legislation that governs the ethical conduct of ministers. One of the intense debates we had then was how exhaustive the rules should be that prevent bad conduct.
Kader’s view, leaning towards his innate belief in the goodness of people, argued strongly that we need a soft touch, with few rules and an emphasis on probity.
He premised his argument on the fact that people who ascended to executive office were noble in their intent, that these were people who had been prepared to sacrifice everything for liberation, and that they were unlikely to be scoundrels.
The second issue was the last big battle he waged in life against the Protection of Information Bill. In fact, he wrote an open letter to the Right2Know campaign a few days before his death. In that letter he wrote: “My conscience will not let my silence be misunderstood. I ask all South Africans to join me in rejecting this measure in its entirety.”
So, ultimately, even President Jacob Zuma rejected the Bill. Our problem is that there is nothing else on the table and we still use the “Protection of Information Act, 1982”, which was designed for and by the repressive apartheid regime, which is now grossly unconstitutional and offers no protection against an incompetent yet intrusive intelligence service. This matter too may assume a topicality if the president responds to the order obtained in the North Gauteng High Court on Thursday by suggesting that he relied on a strange intelligence report to extensively reshuffle Cabinet.
Kader’s lifework was a commitment to liberation, equity and reason and he sought to give effect to this pursuit in every aspect of life. But the greatest contribution he made was to the drafting of our Constitution. Famously, the drafting started on the Asmal’s kitchen table in their Dublin home when a group assigned by ANC president, Oliver R Tambo, set about their work.
That small group included Zola Skweyiya and Albie Sachs. This big ANC mission came to fruition with the passage of our Constitution on 8 May 1996. Without a shadow of doubt, our Constitution, in its construct reflects all of the values that must have been in the exchange at that first meeting at the kitchen table. It is hailed by jurists and constitutional lawyers everywhere as the finest, most progressive and liberating Constitution. It is recognised as marking a break with the tradition of previous constitutions.
But tragically, it is neither known nor owned by the majority of South Africans. And so, as we approach the 21st anniversary of its adoption, that great day in our history when Thabo Mbeki delivered the “I am an African” speech, we must take stock of our Constitution. My submission is that it is a cause for deep reflection, rather than for rah-rah celebration.
Part of our grave error was that once we had adopted it, in our minds we declared the battle over, and proceeded with the everyday tasks of governing, and failing to appreciate that if the Constitution were to have meaning and an impact on the lives of our people, then we should have embarked on an intense programme of education and debate. We failed to do that and now, this instrument of our freedom, and the means for our nation building lies somewhat abandoned.
From time to time, we are reminded of its value. One such instance was when Chief Justice Mogoeng Mogoeng, delivered that important consensus judgment on Nkandla on 31 March 2016. The judgment reads:
One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalised during the apartheid era. To achieve this goal, we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy. 1 For this reason, public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck. It is against this backdrop that the following remarks must be understood:
“Certain values in the Constitution have been designated as foundational to our democracy. This in turn means that as pillar-stones of this democracy, they must be observed scrupulously. If these values are not observed and their precepts not carried out conscientiously, we have a recipe for a constitutional crisis of great magnitude. In a State predicated on a desire to maintain the rule of law, it is imperative that one and all should be driven by a moral obligation to ensure the continued survival of our democracy.”
That judgment reminds us of the fundamental importance of the real value of the decisive break from tyranny to a constitutional democracy. It also reminds us that merely having courts that jealously guard our constitutional order is inadequate. Our courts are the last line of defence. To give life to our constitutional values we need a legislature and an executive that will take their mandate seriously. That same judgment, which was in response to an application brought by the EFF, found that the president, as head of the executive, had “failed to fulfil his constitutional obligations” and that the outcomes on Nkandla “amount to a failure by the National Assembly to fulfil its constitutional obligations”. It is a profound tragedy when the two arms of government, the legislature and the executive, fail to appreciate their responsibilities to advance the interests of democracy. The courts are repeatedly tested, and thankfully hold out in the interests of our values, but they alone cannot bear the responsibility of giving life to our Constitution.
The finding against the “unchecked abuse of state power” is very important. Especially now, at a time when we observe the drift to tyranny in many parts of the world. We have seen this recently in Turkey where the referendum gives power to President Erdogan to do exactly as he pleases, quite unchecked by any organ of state. We see in the unfolding battles in Venezuela where President Moduru wants to replace elected members of parliament with his appointees, and where he already has loaded the judiciary with his supporters to implement his views. We observe the tyranny in President Duterte in the Philippines, who has declared that he “does not give a shit about human rights”. And we observe all too frequently in President Putin in Russia, who operates in a manner completely unchecked. It is at times like this that we really appreciate the values of our constitution and the institutions, such as the Constitutional Court, created by it.
The question before us though is how we can build the caring and inclusive society that our Constitution desires of us to do. The Constitution can only enable that work, it cannot do it, as it is merely ideas on paper.
Let’s reflect on its construct:
I am aware that the constitutional lawyers will have the views of a layperson, such as I am, for breakfast. But I thought it important to share my views on these limited sections to explain that, important as they are, there is unlikely to be any automatic implementation. The Constitution sets out the objectives for society – an equitable society that advances the interests and quality of life of each citizen. To give life to these values and objectives requires ethical political leadership and active citizenry. The challenge before us, therefore is, what is expected of us when those who govern us do not behave as the Constitution intends them to do.
When the president speaks not of his leadership responsibilities, and his oath of office, but of the fact that he is not afraid to go to jail., he fails as a leader.
The Constitution requires of the state to actively protect and promote the rights and entitlements. It sets out the basis for equality and the freeing of the potential of each. When these responsibilities are ignored by the state, and the checks and balances appear not to function, we cannot merely be expected to fold our arms, or blame the Constitution for human and state inaction. Nor can we solely depend on the courts for remedy. We need to demand that the legislature and the executive function as intended by the Constitution and in the interests of society.
The building of a new society is an active process. The author, Edmund Burke, writes: “Society is a partnership between not only between those who are living, but between those who are living, those who are dead and those who are to be born.” The Constitution provides such a thread of continuity, but its success depends on the actions of all in its support.
Now, when one reads the various sections of the Constitution, certain truths are evident. Property rights are dealt with sensitively, in part to prevent the tyranny of the past, enacted through the Group Areas Act, Forced Removals and a myriad of acts of terror against the people. Nowhere in Section 25 is there reference to “willing buyer- willing seller”. It asks for a law of general application to allow for expropriation ‘for a public purpose or in the public interest.’. I remain of the view that land for redistribution is distinctly in the public interest. Yet, 21 years after the adoption of our Constitution, Parliament has still not passed an expropriation Act that passes muster. So, the disadvantage of landlessness continues. Again, I submit that it is a consequence of human inaction and not inherently of the Constitution.
Finally, we must seek to resolve the import of Section 29, on the rights to education. The section speaks of progressive availability and accessibility. What we need is a set of discussions involving a range of participants, both state and non-state, students and university administration and representatives of society, more generally in order to reach an accommodation of what such progressive realisation is. I want to make the point that each right generates obligations and all of the rights and entitlements must be read together since advancing on one, has an impact on the ability to advance on the rest. Similarly, I want to suggest that in the absence of a programme by the state to “actively respect, protect, promote and fulfil the rights in the Bill of Rights”, all rights actually appear limited.
We can do justice to the vision, and the compilation of rights and responsibilities articulated in our constitution, if we assume the same restlessness that Comrade Kader did, about its implementation. It is so obviously not enough to merely feel good about having a Constitution as strong as we have, we have to create the means to live it. In the same way, when we crafted the National Development Plan, we gave consideration to how we could breathe activity into securing all of the rights articulated in the Constitution.
Almost four years after tabling it in Parliament, we observe no programme for its implementation. The NDP, as the Constitution, is a plan for all of the people and not merely for the state. One other similarity is that both documents are products of an analysis at a particular time. To have meaning, the values need be retained and the context sharpened by the process of active interaction, engagement, action and then measurement of results. In respect of both the Constitution and the NDP, we only have the lip service of the occasional mention, without any intention to realise the objectives. There will be no automatic realisation.
Moreover, the increasing reports and evidence of rampant corruption suggest that too many individuals occupy positions of authority for themselves and their cronies. Those left behind are the poor and vulnerable, without access. We must campaign that every vestige of corruption is completely eliminated root and branch. It is not possible to suggest that there is fairness in society in the face of rampant corruption.
The challenge is one of leadership that is focused on service to the people in the interests of our democracy. Sadly that is the biggest liability that confronts us now. There is an opportunity to remedy the situation over the next period. We must be relentless in calling out bad actions. In addition, we must mobilise for the election of a values-based leadership cadre who will demonstrate their ability to ‘pass through the eye of the needle’ and remain that way. Leadership that serves will be accountable only if the organs of accountability are constructed within the ANC.
Similarly, public representatives must be held accountable to the organs of governance. We must return the ANC to the movement that first attracted us, a movement which, in the words of Comrade Kader Asmal has its “moral compass pointing in the direction of its core values”. We must rebuild a movement that offers an inclusive basis for the involvement of the majority, not one that appears to exist for the protection of a single individual, who happens to be a serial wrongdoer.”
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