Today, 18 years later, many South Africans are not free — at least not in the sense that they have access to the necessary financial and human resources to make the kind of life choices that could help them to live meaningful and dignified lives.  But it is important to remember how bad things were for most citizens during the apartheid era, not to excuse or justify the excesses and arrogance of some in government today, but to remind ourselves that the glass is at least (still) half full.

I am always amused when I read some of the most outrageous and angry posts on Blogs which accuse our government of almost everything from genocide to Nazism (the latter insult is usually hurled at anyone supporting redress measures based on race, sex or disability).  If these posters had written the same kind of thing during the apartheid era they would soon have received a visit from the Security Branch. They may even have been arrested or, worse, would have disappeared, never to be heard of again (or their charred bodies found in shallow graves years later).

During the various states of emergency one would never have known what was happening in the country if one only read the newspapers or — god forbid — watched the propaganda on the SABC news programmes. These were all heavily censored and the SABC actively spread false propaganda as part of its total strategy against what the Nats called the “Total Onslaught”. (How quaint and far removed from reality this kind of fascist language sounds today.)

It was only through whispered conversations and by experiencing the disconnect between what was happening around one and what the papers said was happening, that one could get a sense at all of how vicious and brutal the apartheid state was acting in order to try and repress an ever spreading revolt against the state.

Today it would be unthinkable that our government would announce a State of Emergency, that it would send in the army to suburbs around the country to terrorise the majority of citizens and that it would close down newspapers critical of the government. Goodness knows, for those of us who somehow thought South Africa is a special nation (why I can’t for the life of me remember), our government has been a huge disappointment. We expected so much, only to be confronted by a government run by ordinary politicians. After a few years in power, our government started behaving like people in power in many other parts of the world, instead of like the paragons of virtue and the champions of the poor and the marginalised like they promised us they would.

We are just another developing country struggling with the demons of colonialism — albeit one with lots of potential.

But perhaps, as we celebrate Freedom Day, it is important to remember that living in a fairly normal country where politicians lie and cheat and steal, where most citizens try to make a better life for themselves despite the venality of some of their neighbours and many of the politicians, is not that bad — especially for those of us with jobs and access to food and health care. Although many of us — rather naively, perhaps — hoped for better, the working poor and middle classes — including all the white people moaning and complaining about the country “going to the dogs” — are far better off than we were in 1994 (both economically and in terms of our freedom to live our lives as we please). It is the unemployed who have real gripes with our government, but for the moment there has been no sustained and organised revolt against the revolting greed of the politicians and the business class.

But our Constitution is one of the most magnificent legal documents ever created. The judgments of our Constitutional Court are read and studied across the world and have made a real impact on the lives of many (if not enough) citizens. Civil society seems to be emerging from its post-1994 slumber and is stirring, challenging absurd moves by the governing party like the proposed Secrecy Bill and Traditional Courts Bill.

Despite our giggling President who never did answer the corruption charges against him, despite the racisms and sexism and homophobia that still haunt our land, despite the cesspit of corruption seemingly engulfing our Police Service, many South Africans are getting along with life as best they can. More and more of us are realising that our government is not that special, and that we cannot rely on our government alone to improve our lives, that we have to do it for ourselves.

Siyazenzela!

Happy Freedom Day.

However, the Constitution does more than protect citizens against the abuse of power by the political branches of government – and rightly so. This is because the ability of ordinary citizens to live lives in which they are free to make life choices and to pursue their own interests and advance their well-being (the US Constitution in its characteristically optimistic manner speaks of the “pursuit of happiness”) is not only constrained by the state but also by private institutions and individuals who have the economic power or social status to limit the freedom of citizens, either directly or indirectly. Private institutions or individuals who are not constrained by the Constitution may well act in ways that directly or indirectly infringe on the human dignity of ordinary citizens and will often act to limit the freedom of citizens to make rational choices in their best interest to enable them to live meaningful lives.

Moreover, poor and marginalised individuals (through no obvious fault of their own) often do not have access to the very basic minimum goods and services — housing, health care, adequate education, food,  water, electricity and the like — and have no access to the resources to pay for those goods and services that would provide them with even the illusion of the kind of freedom that would enable them freely to choose how they want to live and who they want to become and how they wish to flourish.

That is why our Constitution contains not only the civil and political rights mentioned above, but also a set of social and economic rights. That is also why the Constitution places both a positive and a negative duty on the state to take steps to protect and realise both kinds of rights.

The state therefore has a negative duty not to interfere with the existing enjoyment of one’s right, say, to freedom of expression. Thus it cannot usually pass a law banning any criticism of the President. Similarly, the state has a negative duty not to interfere with one’s right of access to housing. Thus it cannot usually pass a law that would empower the state to demolish your home to make way for a parking lot for the use of politicians or to evict you from your home to make way for the North Korean Olympic team. Similarly, the state has a positive duty to create and maintain a police force and a judicial system, an education system and an electricity grid and water supply and roads and independent institutions to conduct elections, to ensure that we are all sufficiently free and capable to develop and to try and reach our full potential as a human being.

That is also why the Constitution clearly states that one can, in certain circumstances, enforce rights against private individuals and institutions. What use is my freedom of expression, say, if my cell phone company is allowed to prohibit me from sending sms messages criticising the President (especially when this company is in cahoots with all other telecoms companies in the market)? And what use is my right to life, say, if a private hospital can refuse to treat me even as I lay bleeding to death in the reception area of that hospital?

Radical free market capitalists do not like to hear this, but the kind of freedom they envisage and which they say is protected by narrow civil and political rights is often illusory, as any semblance of freedom is premised on access to education, to employment or, in the absence of this, at least to access to all the basic stuff required to make meaningful life choices.

Civil and political and social and economic rights are thus interdependent and indivisible as BOTH kinds of rights — operating in tandem — guarantee the kind of freedom which would truly protect and enhance the human dignity of all citizens. But for those who support human rights only if it protects the free market and the rights and freedoms of those who have the access to resources that would enable them freely to make choices, freedom is often little more than the freedom of the rich to exploit the poor and to continue doing so without interference by the state.

“The law, in its majestic equality,” said Anatole France, ”forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” This is the kind of legal regime that those who reject social and economic rights seem to favour. Put differently, in the world of radical free market capitalists, we are all free to choose to stay in the Mount Nelson Hotel if we want to — even if many of us are starving and only very few of us can indeed afford to do so and will ever have the money to pay for one night in the Mount Nelson (unless we happen to be the head of the South African Communist Party in which case the taxpayers will foot the bill).

It is exactly because our Constitution embraces a far more nuanced and expansive (and far less selfishly pro-rich) notion of freedom, that the Bill of Rights includes both social and economic and civil and political rights. That is why arguments made by columnists like Ivo Vegter are so wrongheaded and (to me at least) morally repugnant. In a recent column published on Daily Maverick, Vegter sets up a false dichotomy, arguing that there is a need to distinguish clearly between “freedoms on one hand, and entitlements on the other”.

Freedoms are those rights that prevent another person — and in particular the state — from acting in a way that infringes your liberty. Entitlements are those rights that are economic in nature, and implicitly impose a financial obligation upon someone else.

Vegter fails to acknowledge that liberty itself is not something that can be adjudged in isolation. One has no liberty if one is poor and homeless — except if one defines liberty as the freedom to starve and die of hypothermia. But Vegter, over-egging the pudding even further, then proceeds to make the following astonishing claim that seems to be at odds with any modern notion of social solidarity, which is a bedrock principle on which the modern nation state is based.

The problem is this: if I have a right to healthcare, and I cannot, refuse to, or neglect to pay for it, someone else has to either provide it at no charge, or pay for it. If I have a right to housing, then someone has to buy or build me a house. If I have a right to food and water, which are indisputably necessities of life, and I fail for whatever reason to provide these for myself, then someone else is obliged, by law, to provide them for me. This, in effect, means that someone else has to produce that to which I claim a basic human right, guaranteed to me in the Constitution. There’s a word for people who are obliged to work for others without choice or payment. And those people, under the South African Constitution, have the right not to be subjected to slavery, servitude or forced labour.

In a modern state, the notion of social solidarity leads to the formation of a government that raises money through taxes. In return, the state is required to take such steps as to allow all citizens to flourish. Without this basic solidarity, this notion that we are all in it together and that we have a right to demand that our taxes are spent on roads and electricity production and water purification and education and a police force, there is no need for a modern state.

For citizens to flourish they must be free to make real choices about their lives and how they want to advance their own interests. Without roads, without schools, without a criminal justice system and a police force, without the institutions that safeguard our right to vote, without access to basic health care, no one has any semblance of freedom and the rights that are supposed to guarantee this freedom. Freedom, in essence, is an expensive commodity as are all the rights protected in a Bill of Rights – even in a liberal Bill of Rights that contain no social and economic rights guarantees.

The distinction between rights and entitlements made by Vegter is a false one. None of us can provide everything we need to flourish for ourselves. We need the state to assist us, in essence to provide us with what Vegter calls “entitlements”.

We can have no freedom and no rights, for example, if we have no legal system, no police force, no judiciary, no system of roads, no telecommunications infrastructure, no regular safe and clean water supply and supply of electricity. Without these state subsidised institutions, life would indeed be “nasty, brutish and short” for most people. Yet we have a right to life, a right to freedom of movement, a right to freedom of speech — all derived from the system and the infrastructure paid for by all taxpayers. In the same way, those who do not have money to pay for education of health care should have a right to demand these from the state. If they do not have access to such things, they are not free in any meaningful sense of the word and they have no rights — including the precious civil and political rights, Vegter champions.

All rights are limited by budget constraints. Vegter approvingly quotes someone who claims that: “Rights are not limited by budget constraints, but entitlements are. So, rights are universal but entitlements are not.” This is false. My right to freedom of expression and assembly is limited by budget constraints, just as my right to housing is. For if I want to have my say and if I want to take part in a protest march then I might need the police to protect me from others who might want to kill me for expressing my view. The police service costs quite a lot of money to run and it has limited resources, so it will not be possible in every single case to insist on exercising the right to free speech and assembly and be protected by the police. In any case, how will I be able to protest freely, if I am too hungry to do so? What kind of right is that if my lack of access to food makes its exercise impossible.

Human rights — whether they are civil and political in nature or social and economic in nature — is not to be confused with charity. Vegter seems to argue that whenever rights cost money they are no more than charity. This is conceptually wrong and ideologically reactionary.

Unless one lives in a totalitarian state, rights are a prerequisite for the exercise of one’s freedom. Without the protection of these rights — which are interdependent and indivisible — everyone except the most wealthy and powerful will have no chance of living a meaningful life, a life of dignity, which is the ultimate aim of human rights. It is not charity when the state pays the police to protect me. Neither is it charity when the state pays a doctor to save my life. This is because in both cases, without the intervention of the state, I might not be capable of living a meaningful life or, worse, I might be dead.

I went on to questioned aspects of the statement which suggested that “appropriate mechanisms be developed to facilitate … regular interface between the three spheres of the State to enhance synergy and constructive engagement among them in pursuit of common transformative goals”. This criticism was recently echoed by Acting Deputy Chief Justice Zach Yacoob, who said in a speech delivered at UCT Constitution Week that he could not agree with any suggestion that the two political branches of government had to discuss matters of importance with the judiciary directly and outside a court hearing, in an effort to influence it.

Because of statements like these about the need for debates and discussion between three branches of government, statements repeated in the discussion document released last month about the proposed review of the Constitutional Court, concerns were obviously raised about the proposed review of the Constitutional Court. Why assess the Constitutional Court when we all know that the reasons for the lack of economic transformation in South Africa are structural (a huge skills shortage and race-based inequality, amongst them) and political (the deployment of unqualified politically connected people to positions in the state sector)?

This anxiety was further exacerbated by previous irresponsible and uninformed statements made by ANC Secretary General Gwede Mantashe about the judiciary destabilising the government and being used to undermine Parliament as well as the more recent perplexing comment by President Zuma that government did not “want to review the Constitutional Court, we want to review its powers”.

Now the Department of Justice has finally announced the terms of reference for the review, and it is looking good for the judiciary. There are two big surprises in these terms of reference. First, the Supreme Court of Appeal (SCA) has now been included in the review along with the Constitutional Court. Of course, given the fact that the original announcement only spoke about assessing the judgments of the Constitutional Court, there will immediately be questions asked about the inclusion of the SCA in the review so shortly after that court had made an adverse finding (on technical issues) in a case that could affect the future political career of the President of the country. But such fears may be allayed by the actual terms of reference of the proposed assessment.

This brings me to the second big surprise of this announcement, namely the actual terms of reference of this proposed assessment. These terms of reference shy away from the controversial (some would say bizarre) proposals about the fundamental weakening of the separation of powers between the judiciary and the other branches of government in order to “facilitate debates” between the three branches of government to ensure they act towards a common goal. The previous two documents both contained talk of this, but the terms of reference avoid this altogether and focuses on many of the really important issues facing the development of our constitutional jurisprudence.

The assessment will be a mammoth (if not impossible) task to complete, and will require “a comprehensive analysis of the decisions of the Constitutional Court and the Supreme Court of Appeal since the advent of democracy” to try and establish:

the extent to which such decisions have contributed to the reform of South African jurisprudence and the law to advance the values embodied in the Constitution; to assess the evolving jurisprudence on socio-economic rights with a view to establishing its impact on eradicating inequality and poverty and enhancing human dignity; assess the impact on the development of a South African jurisprudence that upholds and entrenches the founding principles and values as espoused in the Constitution and how such jurisprudence contributes to and is enriched by the development of jurisprudence in the SADC region, the continent and globally; and assess the extent to which South Africa’s evolving jurisprudence has transformed and developed the common law and customary law in South Africa as envisaged by the Constitution.

The last aspect of this part of the brief is particularly welcome. Section 39(2) of the Constitution states that when courts develop the common law or customary law, they “must promote the spirit, purport and objects of the Bill of Rights”. Because there are not many lawyers and judges whose expertise lies outside the Constitutional Law field who actually engage with this provision seriously, there has been limited development of the common law, despite this powerful tool provided to lawyers to help mould the common law into a more egalitarian and fairer system or rules that focus more directly on whether the application of common law rules lead to just outcomes in particular cases.

In an article published in 2010 in the South African Journal on Human Rights, Dennis Davis and Karl Klare surveyed judgments over the first 15 years of the new dispensation, and found that although some leading judgments demonstrated the capability of the courts to transform the common law and provided glimpses of a more egalitarian, inclusive, and caring legal infrastructure, the jurisprudence is not without its limitations.

The authors found that the chief disappointments are the absence thus far of a coherent exploration of the Constitution’s values or an explicit and sustained effort to develop new legal methodologies appropriate to transformative constitutionalism; the reluctance to interrogate the distributive consequences of private law rules in the routines of economic life; the emergence of a neo-liberal strand in constitutional application; and the lack of critical sharpness with respect to separation-of powers issues. The authors argued that while the inhibiting effect of mainstream legal culture was not entirely responsible for these difficulties, it is nevertheless true that concerns expressed a decade ago that the courts would be held back by the traditionalism of South African legal culture were well taken.

It is also welcome to see that the review envisages a study of the implementation of the decisions of the Constitutional Court and the Supreme Court of Appeal by the State and would aim to determine:

progress made and challenges encountered in the implementation of the decisions of these courts; legislation, policies and government programmes that have been put in place to give effect to these decisions; and capacity of the state within the available resources to realise the outcome envisaged by such court decisions.

This is indeed a huge and complex task, both in terms of the sheer volume of judgments that would have to be scrutinised but also because of the methodological challenges that will arise in deciding how progress by the State should be measured. How does one measure whether a particular decision about an unreasonable housing policy, say, was indeed implemented by the various departments (including provincial housing departments)? Would the study focus only on national government, or would it also focus on provincial government and local government (where most of the “delivery” happens and where most of the problems in implementing social and economic rights occur)? The terms of reference are unclear on this point.

Of course, one of the biggest problems in South Africa relating to the promotion and protection of the rights in the Bill of Rights is that most South Africans do not have access to courts. Poor people almost never get their cases heard by the Constitutional Court unless they can persuade an NGO’s (not a group of institutions much loved by the government) to take up a case on their behalf. Without NGO’s our jurisprudence would have been much impoverished – both in the field of social and economic rights jurisprudence and more general Rule of Law jurisprudence.

The review therefore requires that a study be conducted on direct access to the Constitutional Court through a comparative study of other jurisdictions, to identify factors that inhibit access to justice in relation to:

the costs of litigation; legislative frameworks, structures and processes that inhibit access; the right of access to the Constitutional Court by indigent and unrepresented persons; and whether the rules and the practices with regard to direct access to the Constitutional Court promote access to justice in particular to the indigent and unrepresented persons.

The Constitutional Court discourages direct access to the highest court as such an approach will fail to ensure that the ordinary High Courts and the SCA deal with Constitutional Law cases and engage vigorously with Constitutional issues. It will also make it very difficult for the Constitutional Court to deal properly with cases that come before it. In the absence of a comprehensive programme to fund human rights litigation ordinary people will often not be able to get to the highest court. Of course, another option is to amalgamate the various Chapter 9 institutions dealing with human rights and to create a super Human Rights Commission that will take up cases on behalf of indigent people whose rights have been infringed by the state or private institutions. This was proposed by the Asmal Report, but the proposal has never been taken up by the government or by Parliament.

Judging from the terms of reference of the assessment of the Constitutional Court (and now the SCA), the government has retreated from its innitial far more problematic position about why the review was needed. Gone is the threatening tone and any mention of the assessment being needed “to ensure the judiciary conforms to the transformation mandate as envisaged in the Constitution of the Republic in terms of non-racialism, gender, disability and other transformational variables”. Gone is any talk of the review being needed to promote “interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution”.

In short, as is often the case with the ANC-led government, there are obviously two competing views about the judiciary inside the government represented by the various statements about this assessment. The one faction is deeply hostile to the judiciary (after all, judges review and set aside unlawful and unconstitutional actions by the President and unconstitutional laws made by Parliament and judges also convict and send to prison those who have been proven to be corrupt). The other faction understands the importance of an independent judiciary that is eager and empowered to implement the many progressive aspects of the Constitution. The original cabinet statement seemed to be influenced by the first faction, while the latter faction seemed to have had a bigger hand in preparing the terms of reference.

If done well, it might well assist the government to provide better access to justice and to create the mechanism that would help it to better implement progressive court judgments.

It remains an open question whether any institution or a number of institutions will actually be able to complete this review in the 18 month period envisaged by the terms of reference. After all the SCA delivers over 250 judgments each year while the Constitutional Court hands down between 30 and 40 judgments a year. That means the reviewers will potentially have to consider more than 5000 judgments and will then have to ask how all the relevant judgements (selected from these 5000) have impacted on the state and to what extent the state has actually implemented the relevant judgments. Quite frankly, I am not sure this is practically possible at all.

All I can say is: I am glad it’s not a job I will have to do.

There are two problems with this line of reasoning. First, the mere fact that the Constitution has been amended 16 times is irrelevant, as the number of amendments is not what is in issue. Rather what is in issue is the nature of any proposed amendments. Are they good for democracy and for the country or are they bad? Would they insulate the governing party from scrutiny when it flouts the law and the Constitution or would it enhance oversight and democratic accountability for any governing party? Would amendments rob citizens of their rights and their ability to have those rights enforced by the courts, or would it make it easier for citizens to enforce their rights? Would amendments hamper economic transformation by protecting the corrupt in government and the private sector, or would it advance transformation by ensuring open, accountable and transparent government with the requisite oversight powers for the courts?

What those who argue that the Constitution has been amended 16 times do not say, is that almost all of these amendments passed so far have been mere technical amendments of no real substantive or political effect. Where substantive amendments have been made, this has tended to weaken the Constitution and the checks and balances in it, instead of strengthening it, and as such was criticised by many in academia and civil society.

But most amendments have been entirely uncontroversial.

Thus the first amendment dealt with the oath of office to be sworn by the Acting President. Amendment two, inter alia, changed the name of the South African Human Rights Commission to that of Human Rights Commission. Amendment four was needed to confirm that a provincial legislature remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next legislature. The fifth amendment, inter alia, was aimed at allowing a proclamation calling and setting dates for an election of the National Assembly to be issued either before or after the expiry of the term of the National Assembly. And on it goes.

So far only four sets of amendments of some importance and political relevance have been made to our Constitution. The sixth amendment stated that the head of the Constitutional Court (and not the head of the Supreme Court of Appeal) will become the Chief Justice of South Africa and also provided for the extension of the term of office of a Constitutional Court judge by the legislature. The second part of this amendment was highly controversial as it potentially affected the separation of powers and the security of tenure of Constitutional Court judges and was vigorously opposed by academics and civil society groups. It did not help that Parliament unconstitutionally tried to delegate the power to extend the term of office of a Constitutional Court judge to the President, a provision that was first relied upon by President Jacob Zuma when he wanted to extend the term of office of former Chief Justice Sandile Ngcobo.

The eighth, ninth and tenth amendments were passed to introduce the highly contentious floor crossing provisions, which allowed members of national and Provincial Parliaments and Municipalities to cross the floor during two window periods — as long as more than 10% of the members of the party crossed the floor. These provisions insulated the ANC from floor crossing (as it would have required between 25 and 30 ANC members to cross the floor together) but decimated smaller parties where even 1 person could easily cross the floor.

In 2009, after the Polokwane conference and in the face of threats of factionalism within the ANC, the fourteenth and fifteenth amendments were adopted to abolish the floor crossing, thus protecting the ANC from possible floor crossing defections by the losing factions of party elections at national, provincial and local government level.

The twelfth and thirteenth amendments provided for the elimination of cross-border municipalities by changes to the boundaries of certain provinces. These were highly contentious as citizens living in KwaZulu-Natal and Gauteng did not want to be moved to worst performing provinces of the Eastern Cape and North-West respectively. Despite valiant efforts by the people of Matatiele and Merafong, and despite some promises made to the contrary before national elections, the ANC used its then two-thirds majority to force these communities into provinces they did not want to go to.

Every proposed amendment to the Constitution must surely be evaluated on its merits. Amending the Constitution is not per se a problem. Only those proposed amendments to the Constitution that will protect the governing elite at the expense of citizens or will undermine the very nature of our Constitutional democracy, will be problematic. Each proposed amendment will have to be judged on its own merit.

Which brings me to the second problem with this talk about amending the Constitution. Those who argue that the Constitution must be amended because the Constitution has become a stumbling block to the effective governance of the country and hence in effect prevents social and economic transformation, are rather vague about how the Constitution should be amended.

There seems to be two general arguments circulating and being whispered about in this regard. First, some among us are upset that the courts can review and set aside decisions by the President, other members of the executive and other organs of state, when such decisions are not authorised by the Constitution or the law, do not comply with the Constitution or ordinary law or when these decisions are not rational (in other words, when the decisions are arbitrary, made in bad faith or capricious). This argument is based on the premise that those in government should not be bound by the law and should, in effect, be above the law.

For example, if the Constitution or an ordinary piece of legislation requires the President to appoint a “fit and proper” person to a position and he then decides to appoint somebody to that position who has been found guilty of corruption or murder, so the argument goes, it is not for the non-elected members of the judiciary to declare such an appointment invalid merely because the appointment did not meet the minimum requirements set by the law.

Such an argument is no more than an argument for lawlessness. Of course, in such a case there is nothing that prevents the legislature from amending the relevant legislation (or the Constitution – if the requisite majority can be mustered to do so) to abolish the requirement that only a “fit and proper” person should be appointed to the job. What cannot ever be accepted in a constitutional democracy, is a situation where the law and the Constitution can be flouted at will, with no recourse open to the courts to check this flouting of the law.

A second argument is made that the Constitution is a compromise document agreed on by the Constitutional Assembly in line with the 34 Constitutional Principles contained in the interim Constitution and as such lacks legitimacy because it contains many anti-transformation provisions.

Of course, the interim Constitution contained a provision that would have allowed the final certified Constitution to be submitted to voters in a referendum if two-thirds of the members of the Constitutional Assembly could not agree on the text. If at least 60% of the voters approved of the draft Constitution in a referendum, it would have taken effect. The ANC and the NP both avoided this by agreeing on the text. The fact that a referendum was never enforced suggest that the ANC was worried that its version of the Constitution would not obtain a 60% majority in a referendum. Instead both parties, after extensive public participation, agreed to a document which it could live with – although almost all commentators have since argued that the ANC out negotiated the National Party and secured a Constitution that was far closer to its original plans than they could have dreamed about.

In any case, it is unclear which provisions of the Constitution hinders social and economic transformation in South Africa. The property clause is often singled out in this regard, but as I have pointed out several time before that section does not require a “willing-buyer willing-seller” land reform process. Neither does it require the payment of market value for all land expropriated for purposes of land reform. Those who claim that the Constitution obstructs social and economic change has not yet been able to point to any other provisions in the Constitution that mitt be objectionable. This is probably because there are none.

Ours is not an exclusively liberal Constitution. Although it contains a system of government based on the separation of powers and checks and balances as well as all the traditional liberal human rights like freedom of expression, it also contains a set of social and economic rights that places a positive duty on the state to take reasonable steps to provide better and more expansive access to housing, health care, education and other social and economic rights. Moreover, the Constitution applies, to a large degree, horizontally also binding private individuals and institutions like businesses. This aspect is based on the view that the human rights of an individual can be trampled on not only by the state but also by powerful private interests and by individuals.

My question would be: which sections of the Constitution exactly are those that hinder transformation? In my view there are no such sections to be found in our Constitution. Those who argue that it might be time to amend the Constitution to effect social and economic transformation need to say which sections they find objectionable. We can then have a sensible debate about this question. In the absence of such clear proposals and arguments, the mutterings and whispers about the need to change the Constitution can be treated as ill-informed and self serving drivel by those who are seeking a scapegoat to avoid accountability for governance failures over the past 18 years.

My challenge to those who whisper and grumble about the need to change the Constitution is this: either put your cards on the table so that we can debate the issue or stop your self-serving campaign to discredit the Constitution. In the absence of concrete proposals one will have to assume that those who talk about changes to the Constitution are not interested in the well-being of South Africans, but rather in retaining power and access to tenders by scapegoating the Constitution.

For example, in response to the British class system imposed on India during colonial rule and as a symbol of the Constitution’s egalitarian ambitions, section 19 of the Indian Constitution (in its Bill of Rights) prohibits the Indian state from conferring titles – except for military and academic titles – on any citizen. It also prohibits Indian citizens from accepting any title from any foreign State.

South Africa’s Constitution did not go as far as the Indian Constitution and, in this small respect, is less egalitarian than its Indian cousin. Although our Constitutional Court has found (in the Hugo case) that the Constitution had abolished the notion of Royal prerogative powers (which was inherited from the British constitutional system and used to be exercised by the State President), our Constitution does contain a set of codified powers entrusted to the President by section 84(2) of the Constitution. Many of these powers are similar to the prerogative powers previously held by the State President before 1994. However, in our constitutional dispensation there are no powers derived from the Royal prerogative which are conferred upon the President other than those enumerated in section 84(2) of the Constitution.

Section 84(2)(k) of the Constitution states the President is empowered to “confer honours” on those deserving of it. Our Constitution therefore allows the President to confer honours (like the Order of the Baobab or the Order of Luthuli) on individuals who have rendered exceptional services beyond the ordinary call of duty in a particular field or to the nation as a whole.

Last week, in the case of Mansingh v President of the RSA, the North Gauteng High Court in a judgment authored by Phatudi J, had to decide whether this section authorised the President to confer the title of Senior Counsel (also popularly known as SC or Silk) on practicing advocates. This power to confer the status of silk on advocates used to form part of the Royal prerogative powers of the head of state. Members of the Bar must apply for this “honour” and their silk status is reliant on the Bar Council approving their application. Once they become silks they can charge higher fees for their services and, so it is argued, they also obtain a higher status among their colleagues.

The crisp legal question that had to be answered in this case was whether the provision in section 84(2)(k) of the Constitution empowered the President to confer silk status on “deserving” advocates.

But behind this legal question lies a policy question with profound political implications, namely whether it is advisable to retain a system of honours for advocates that might exclude many women and black South Africans from achieving the same professional status as the most exulted members of the Bar.

Bear in mind that members of the advocates’ profession themselves, in effect, select those advocates to be “honoured” with the status of Senior Counsel in accordance with rather vague criteria. Does this system in essence play a gatekeeper role? How many women and how many black South Africans have been “selected” to be “honoured” in this manner and which criteria were used to select them? Is it still tenable in a constitutional democracy to perpetuate a system of honours which harks back to our colonial past? Should we not rather follow the Indian example and abolish all these kinds of honours bestowed on a select group of people to bring our practices in line with the egalitarian spirit of the Constitution?

The judgment did not engage with these policy questions but focused on the meaning of section 84(2)(k). The applicant argued that the phrase “conferring honours” under section 84(2)(k) of the Constitution could not include the conferring of silk status on some advocates because it in effect resulted in the bestowing of a privilege on some people who did not earn it. Secondly, she argued for a narrow interpretation of honours to include honours for which one cannot apply but is bestowed on one by the President entirely based on a discretion exercised by him.

The court looked at the application procedure used by the Johannesburg Bar Council and noted that candidates are invited to apply for silk. The applicant must discuss his/her proposed application informally with the Leader of the Bar. The Bar council considers the application based on the candidate’s practice which should consist of good quality work. If the application succeeds, the Chairperson of the Bar discusses the recommended application(s) with the Judge President. If the Judge President approves of the application(s). He forwards the recommendation to the Minister of Justice and to the President who then formalises the appointment as silk.

As Phatudi J remarked, this process looks very different from the process followed with the conferring of normal honours like the Order of Luthuli or the Order of the Baobab:

Given these facts Phatudi J agreed with the applicant that there was a difference between a conferral of honours such as the Order of the Baobab (for which one cannot apply) and the conferring of the status of silk. The Order of the Baobab, for instance, is awarded to South African citizens for services distinguished beyond the ordinary call of duty. It is an “honour” awarded for exceptional and distinguished contribution in community service. I am reluctant to accept that the framers of our autochthonous Constitution were comfortable that the President is empowered in terms of section 84(2) (k) to confer the status of senior counsel on practising advocates.

Are the services and contributions made by practising advocates exceptional or beyond the ordinary call of duty that warrant an award of the status of senior counsel? Can an award of the status of senior counsel be equated with, for instance, Order of Luthuli or Order of the Baobab, the latter being awarded to South African citizens with distinguished service that is way above or beyond the ordinary call of duty?

If one assumes that an advocate has acted above and beyond the ordinary call of duty because he or she has charged very high fees to clients and represented them well in court, then the President might be viewed as having the constitutional authority to confer this honour of silk on them. If, however, one believes that advocates have merely done what others have done, namely to make a living as well as they could while raking in the money, then the Constitution may well be viewed as not conferring this power on the President.

Given the fact that unlike the Indian Constitution, our Constitution does not prohibit a citizen from being awarded a special title, the President might well have had the power to confer silk status on advocates if this power had been granted to him in terms of other legislation. However, there is no legislation, including the Admission of Advocates Act 74 of 1964 (Advocates Act) that empowers the President to institute, constitute and award the status of senior counsel to practising advocates or any legal practitioner who has displayed “good quality work” to the legal profession. The term “Senior Counsel” is not even defined in the Advocates Act. The term only appears in section 8A that provides that ‘[t]he President may at the request of any person appointed as a Senior Counsel of the Republic while in the service of the State, withdraw such appointment, and thereupon such person shall revert to the status which he had as an advocate immediately prior to that appointment’.

The judgment will now have to be confirmed by the Constitutional Court before it has any legal effect as it deals with an act of the President. If that court confirms the judgment, legislation may well be passed to allow the President to continue to confer this status on advocates. Such legislation might well have to contain more detailed and precise criteria for the conferral of this status to subject this practice to the disciplining power of the constitution which is supposed to establish a culture of justification – also in the legal profession.

But ironically, if the Constitutional Court confirms this judgment and no legislation is passed to allow for the continued conferral of the status of silk on advocates, those advocates who were made silk before 1994 would retain their status while those who were made silk after 1994 would lose their status. This would mean that those who obtained status of silk before 1994 would probably become even more sought after and they would be able to charge even higher fees than they currently do. Whatever happens, this judgment represents the start of the conversation about the conferral of professional titles on lawyers – not the end of that conversation.

Because we get most of our information about the Secrecy Bill from the media, it is not surprising that members of the media have focused on their own short-term interests and have argued (not entirely correctly) that the Bill was primarily aimed at muzzling the press and at hiding corruption. But this view fails to consider the broader context within which the Secrecy Bill is being discussed.

One must recall that this Bill originated with (and was drafted by) members of the intelligence services and is primarily aimed at creating a legal regime that would provide a veil of secrecy behind which our spies would be able to hide. As long as our intelligence services do what they are constitutionally mandated to do and do not abuse their powers, the Bill will, in my opinion, not have as dramatic an effect on the media landscape in South Africa as some commentators have argued.

(Of course, if the Minister of State Security misused this Bill and extended the power of classification to many of the more than 1000 organs of state — as he is empowered to do in terms of the current draft — the Bill may well be used to hide corruption and maladministration on a vast scale, but that was not the primary objective of the Bill.)

Section 199 of the Constitution contains several provisions that signal an understanding on the part of the drafters of the Constitution that security services could easily be misused by the government of the day. Thus it states that the security services must act, and must teach and require their members to act, in accordance with the constitution and the law; that national security must be pursued in compliance with the law, including international law; and that no member of any security service may obey a manifestly illegal order. The security services are obliged to respect constitutional rights and they are prohibited from prejudicing or furthering the interests of political parties.

Dr Laurie Nathan, who has written extensively on the South African Intelligence Services and was also a member of the Ministerial Review Commission on Intelligence (along with Joe Matthews, a former Deputy Minister of Safety and Security, who chaired the body, and Dr Frene Ginwala, the first Speaker of our democratic Parliament), has warned that:

There is ample historical evidence that politicians and intelligence officers can abuse these powers [of intelligence agencies] to infringe rights without good cause, interfere in politics and favour or prejudice a political party or leader, thereby subverting democracy. They can intimidate the government’s opponents, create a climate of fear and manipulate intelligence in order to influence state decision-making and public opinion. Given these dangers, democratic societies are confronted by the challenge of constructing rules and controls that prevent misconduct by the intelligence services without constraining the services to such an extent that they are unable to fulfil their duties. In short, the challenge is to ensure that the intelligence agencies pursue a legitimate mandate in a legitimate manner.

The Review Commission (which reviewed the National Intelligence Agency (NIA); the South African Secret Service (SASS); the National Intelligence Coordinating Committee (NICOC); the National Communications Centre (NCC); the Office for Interception Centres (OIC); and Electronic Communications Security (Pty) Ltd)) reported that the intelligence agencies in South Africa have not fully embraced the constitutional system with its requirements for openness, transparency and accountability and have not always adhered to the letter and spirit of the Constitution and the law.

Although South Africa’s intelligence legislation and governance arrangements have undergone dramatic transformation since the end of apartheid in 1994 and now compare favourably with those in established democracies, there seems to be a disconnect between what the law requires and what happens in practice.

For example the Review Commission found that  the Minister of Intelligence has issued secret regulations that are known only to the intelligence community. The intelligence legislation permits the Minister to do this despite the constitution’s clear statement that regulations must be accessible to the public. Similarly, the Constitution provides that the Auditor General’s reports must be submitted to the relevant legislature and must be made public. Nevertheless, the audit reports on the intelligence services are presented only to the parliamentary Joint Standing Committee on Intelligence (JSCI) and are classified.

As the Report points out (and as Dr Nathan has pointed out elsewhere), despite the fact that the Constitution states that national budgets and budgetary processes must promote transparency and accountability, the annual budgets of the intelligence services are secret; they are reviewed by the JSCI but are not presented to Parliament.

By executive decision the members of the intelligence services are excluded from the labour rights in the Bill of Rights, but this limitation of rights is not covered by legislation as required by the constitution. The Review Commission argued that these deviations from the Constitution are unsound and impermissible. This view was shared by the National Treasury with respect to the intelligence budgets; by the Auditor General with respect to the audit reports on the intelligence services; by the Inspector General and the State Law Adviser with respect to labour rights; and by the Inspector General with respect to the use of intrusive measures.

Most seriously, the Review Commission found that intelligence services regularly infringed on the right to privacy through intrusive methods that are unconstitutional. For example, it found that the NCC, which intercepts electronic signals such as cell phone conversations, is engaged in eavesdropping that is unconstitutional and unlawful. This is because the centre fails to comply with the requirements of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002, which prohibits the interception of communication without judicial authorisation.

It is in this context that the Secrecy Bill must be evaluated. It may be that the Review Commission Report was acted upon decisively and that the culture of secrecy and lawlessness reported on in the Commissions finding have been addressed in a bold and decisive manner. But, given the fact that it is always difficult to change a culture of secrecy that is deeply entrenched, it will not be surprising if the serious problems with the Intelligence Services (which threaten the health of our constitutional democracy) have persisted or have even become worse.

Imagine what would happen if  the Intelligence Services tapped your phone (or the phone of any other person considered — rightly or wrongly — to be an “enemy of the state”), if they abducted you (or any other person considered — rightly or wrongly — to be an enemy of the state”) and “rendered you to Pakistan, the USA or Syria to be tortured and maybe killed. What would happen if these institutions with access to mountains of information and the technology and manpower to run disinformation campaigns and terrorise people, embarked on secret projects to destabilise civil society groups, social movements, labour movements or opposition parties who they perceive to be threatening the stability of the state?

If the state were then to be conflated with the government of the day, what will emerge is a national security state in which the normal laws of the country may not apply as strictly to the intelligence community, while its abuse of power and flouting of the law would be difficult if not impossible to expose without facing arrest and eventual imprisonment for between 2 and 25 years. The Secrecy Bill will then become a powerful weapon to protect this national security state and will protect its agents and the institutions who act in such illegal ways from exposure in the  media.

When Moloto Mothapo, from the Office of the ANC Chief Whip, wrote late last year that the Secrecy Bill was essentially a security Bill, not a media Bill, “aimed at protecting the national security of the Republic of South Africa”, this reassurance might have been more illusory than most people might have realised.

It is in this context that claims of the security establishment that the Bill is firmly in line with best international practice must be interrogated. During a National Assembly debate on the Bill late last year, State Security Minister Siyabonga Cwele said: “We have looked at international best practices and there is no country which practises such reckless practice.” He said that even Britain’s Official Secrets Act did not include a public interest defence.

Putting aside the fact that — unlike Britain – South Africa has a written Constitution that contains a set of fundamental human rights which can be enforced by our courts, these claims are not as plausible as one might at first believe them to be. For example, those who claim the Bill contains international best practice, might either be unfamiliar with (or might deliberately be misleading the public about) the fact that in 1995 a group of experts in international law, national security, and human rights, the International Centre Against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand, adopted the Johannesburg Principles on National Security, Freedom of Expression and Access to Information in Johannesburg and that the Bill in no way measure up to these principles.

The Principles have been endorsed by Mr. Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, in his reports to the 1996, 1998, 1999 and 2001 sessions of the United Nations Commission on Human Rights, and referred to by the Commission in their annual resolutions on freedom of expression every year since 1996.

What will happen when those soldiers open fire on citizens and ultimately kill scores of citizens (much like soldiers used to kill scores of citizens in the last ten years of apartheid in townships across South Africa)? Who will be blamed for such a massacre? Will soldiers be charged with murder and sentenced to jail for killing innocent civilians? Because mark my words, if the routine deployment of heavily armed soldiers to combat crime and intimidate protestors or ordinary citizens going about their business is not stopped, a massacre will occur at some point. It always does in a state where the government of the day conflates the role of the police with that of the military and routinely uses the military to assist the police with ordinary safety and security work inside the country.

In terms of section 205(3) of the Constitution the police service (NOT the military) is tasked with preventing, combating and investigating crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. Because we are a constitutional democracy and not a military dictatorship, the military should only assist the police service in exceptional circumstances and, as I pointed out earlier this week, only in accordance with strict procedures.

Last week soldiers were involved in a law enforcement exercise in Johannesburg and reportedly assaulted a businessman by slapping him and throwing him to the ground. With a boot on his chest the soldier then allegedly questioned his nationality. (See picture below, taken by  Ihsaan Haffejee.) As a South African of Indian descent, they probably assumed he was an immigrant from Asia. Luckily they did not shoot or kill anyone with their heavy weapons while they were out there supposedly searching for counterfeit goods.

Curious onlookers to this operation in the bustling CBD of Johannesburg reportedly had stun grenades thrown at them when they gathered to see what was happening. Other onlookers got their faces full of pepper-spray. The Star newspaper reported that one man had his camera confiscated by soldiers after he took pictures of one of them beating a man with the butt of his assault rifle. Do we really want to live in a state where heavily armed soldiers get involved in the assault and intimidation of fellow citizens?

Responding to queries about the legality of the involvement of heavily armed soldiers (allegedly aimed at searching for counterfeit goods, but in reality aimed at intimidating ordinary citizens to prevent them from engaging in political protests), General Ndivhuwo Mabaya stated that the police and the SANDF have a cooperation agreement which covers all their joint operations, that this was approved in 2001 “or so”, and that this blanket agreement allows the deployment of soldiers to assist the Police whenever and wherever.

“The President is not a person,” he said, but “an office”, (albeit an office with several wives, a blue light brigade and a mean singing and dancing routine) “so the agreement and authorisation of cooperation of the two institution signed in 2001 or 2002 is still valid”. He conceded that the President needed to sign an order to deploy soldiers, but argued that the 2001 agreement covers all eventualities. Helen Zille must agree with this argument because her government has requested the deployment of soldiers in several hotspots around Cape Town (in places where poor black people live or which they frequent, of course — I have never seen heavily armed soldiers in Bishopscourt or Bantry Bay).

This is dead wrong — and dangerous to boot. Here is why.

It is a well-established principle of South African constitutional interpretation, that the provisions of the Constitution have to be read together, as the various provisions may relate to one another and often “talk” to each other and has meaning only in relation to other provisions in the Constitution. One cannot determine the purpose of a sub-clause of the Constitution if one does not read that sub-clause in conjunction with surrounding sub-clauses and other related clauses. And as any constitutional lawyer will tell you, constitutional interpretation relies heavily on a “purposive” interpretation of the provisions of the Constitution: one must ask what the purpose of a relevant provision of the Constitution is and then interpret it accordingly to give effect to this purpose.

That is why we must ask what the purpose of section 201 of the Constitution is. That is also why sub-sections 2 and 3 of section 201 of the Constitution must be read together. The purpose is clear: the drafters of the Constitution wanted to avoid a situation in which an unaccountable President (the person, not the office) sent soldiers to fight in foreign wars (without having to declare war on that country). Furthermore they wanted to Prevent an unaccountable President from sending soldiers into the suburbs of South Africa to intimidate protestors and to instil fear in the hearts of citizens in a desperate attempt to cling to power.

The apartheid government did both of these things and no one was ever held accountable for it. The drafters of our Constitution knew better and included section 102 to ensure Presidential accountability for the deployment of troops inside and outside South Africa. Thus, section 102 of the Constitution states:

2. Only the President, as head of the national executive, may authorise the employment of the defence force (a) in co-operation with the police service; (b)in defence of the Republic; or (c) in fulfilment of an international obligation.

3. When the defence force is employed for any purpose mentioned in subsection (2), the President must inform Parliament, promptly and in appropriate detail, of (a) the reasons for the employment of the defence force; (b) any place where the force is being employed; (c) the number of people involved; and (d) the period for which the force is expected to be employed.

4. If Parliament does not sit during the first seven days after the defence force is employed as envisaged in subsection (2), the President must provide the information required in subsection (3) to the appropriate oversight committee.

The President has a duty to authorise deployment of soldiers and when he does authorise such a grave step, to inform Parliament in detail about any deployment of the soldiers, the reasons for the deployment and how many soldiers are deployed in this manner. Reading these sub-sections in isolation, as if the President can provide a blanket authorisation for the deployment of South African soldiers which would cover every possible eventuality, on the condition that he or she provided details of each deployment to Parliament, would completely negate the purpose, meaning and effect of section 201.

Instead of ensuring that the President is accountable to Parliament for what may be life and death decisions, such a reading would require a President (either as a person or as an office) never to have to take responsibility for such a decision and never having to defend it to the democratically elected members of Parliament.

Why this reading is absurd and wrong can easily be illustrated with an example. Recall that section 201 covers situations like the deployment of soldiers as part of an international peace keeping effort or as part of a military campaign that does not involve a declaration of war by South Africa. In the reading of General Mabaya, the President (who, is not a person after all), may in general terms, authorise the deployment of South African troops abroad to fight in wars in which they might well be killed.

When, several years or even decades after such general authorisation, the USA then wishes to invade Iran and asks South Africa to contribute troops to a coalition of the willing or Uganda wishes to invade the DRC and asks South Africa to contribute troops to a coalition of the righteous, this prior “authorisation” (even if given in general terms ten years ago by another administration) would comply with the requirements of section 201(2).

This would render section 201(2) utterly meaningless and would negate its purpose and effect. Section 102(2) requires authorisation by the President because this will hold the President and his or her administration accountable for what would often be highly charged and politically contentious decisions, decisions that might lead to the loss of life of large numbers of South African soldiers. Because a decision of this kind may be politically highly contentious, a President will have to consider all relevant factors — including the possible opposition of voters to sending South African soldiers to die on foreign soil for a cause they do not believe in — before authorising such a drastic step.

Sending troops to Iran, for example, to assist the United States of America (who might be invading a foreign country in order to placate the far-right wing government of Israel or to secure oil supplies for the USA) would probably be opposed by the vast majority of South Africans and by a majority of ANC voters. But if General Mabaya is to be believed, in a case like this our Constitution would only require that a previous President had agreed (in general terms and more than 10 years ago)  that South African troops could be deployed abroad, for section 201(2) to be complied with.

Moreover, this absurd interpretation would also negate the purpose and effect of section 201(3). Why would a President be required to answer to Parliament for a specific deployment after the deployment had already taken place, if that President was never required actually to authorise the specific deployment at all? And would this mean that a junior Defence Official would be able to decide to send troops to Iran because a President had authorised — in general terms — the deployment of South African troops abroad 10 years previously? This would clearly be absurd, yet General Mabaya wants to convince us dat perdedrolle eintlike vye is (that horse manure droppings are really figs).

Read holistically, section 201 requires the President to take political responsibility for each decision to deploy soldiers inside and outside South Africa and then to account to Parliament for this decision by reporting to it on the reasons for the decision as well as on the number of troops to be deployed. Parliament has (at least on paper) the power to stop such a decision as it can threaten to fire the President if he or she authorises the sending of troops to Iran or the sending of troops into townships where citizens have taken to the streets to protest against corruption and service delivery failures. If Section 102 allowed for a blanket authorisation for this kind of thing into the future, Parliament would have no such power and no role to play in holding the President to account, and the reporting obligations would become utterly meaningless.

Generals or military bureaucrats may then make individual decisions about the deployment of soldiers inside and outside South Africa and this will undermine the principle that soldiers are subject to civilian control and that the President, as Commander in Chief , is accountable to the only truly democratically elected national body, namely the National Assembly, for his or her actions.

No, General Mabaya, you are dead wrong. You are also exposing our soldiers to criminal sanction.

Every time heavily armed soldiers appear on our streets and assault and intimidate ordinary citizens, they are doing so unlawfully. Ordering a soldier to take part in such an operation against fellow citizens is thus, arguably, manifestly unlawful. This means that soldiers may well have a legal duty to disobey orders to take part in policing operations inside South Africa, as section 199(6) of the Constitution states that no member of any security service may obey a manifestly illegal order.

If they do not and they are involved in the killing of a civilian during such an unlawful operation which they had agreed to be part of, an individual soldier might well expose him or herself to prosecution for murder. If I was a member of one of the Defence Force Unions, I would be very worried about such a possibility indeed and I would seek clarity on it. Surely Defence Force Unions have a duty to protect their members from possible criminal prosecution? Why are they not taking this up with the leadership of the Defence Force and, if she would deem to talk to them, with the Minister of Defence?

By December 1996 that Court had already declared invalid the death penalty as well as action taken by then President Nelson Mandela. It had confirmed the constitutional validity of the amnesty provisions in the Truth and Reconciliation Commission Act and had sent the final Constitution back for redrafting because the draft had failed to conform to the 34 Constitutional Principles agreed to by negotiators before the 1994 election.

In short, by the time the final Constitution was signed by President Mandela 15 years ago, the Constitutional Court had demonstrated a clear intention to do its job properly by declaring invalid acts of Parliament and actions of the executive which did not conform to the provisions of the supreme Constitution. 

President Mandela might well have had reason to be miffed by the Constitutional Court because in the Executive Council of the Western Cape Legislature case it had found that the Parliament had unconstitutionally tried to delegate law making power to President Mandela and that his exercise of powers in terms of this delegation was thus unconstitutional. (This judgment was one of the judgments relied upon by those who challenged the unconstitutional attempts by President Jacob Zuma to extend the term of office of the former Chief Justice Sandile Ngcobo.)

President Mandela might therefore have expressed concerns about the “intrusion” of the Constitutional Court into the realm of “policy making” and might have warned that the work of the Constitutional Court will be assessed to determine whether that court is acting in a way that questions the power of the democratically elected legislature and the executive. Yet, in his speech at Sharpeville 15 years ago President Mandela did no such thing. Instead he said the following. 

Friends and compatriots;

By our presence here today, we solemnly honour the pledge we made to ourselves and to the world, that South Africa shall redeem herself and thereby widen the frontiers of human freedom.

As we close a chapter of exclusion and a chapter of heroic struggle, we reaffirm our determination to build a society of which each of us can be proud, as South Africans, as Africans, and as citizens of the world.

As your first democratically elected President I feel honoured and humbled by the responsibility of signing into law a text that embodies our nation`s highest aspirations.

In writing the words which today become South Africa’s fundamental law, our elected representatives have faithfully heard the voice of the people. To the Constitutional Assembly, and to its Chairperson and Deputy Chairperson who guided it through a complex and arduous process, we owe thanks.

We owe thanks to the Constitutional Court which has proved a true and fearless custodian of our constitutional agreements.

In centuries of struggle against racial domination, South Africans of all colours and backgrounds proclaimed freedom and justice as their unquenchable aspiration. They pledged loyalty to a country which belongs to all who live in it.

Those who sought their own freedom in the domination of others were doomed in time to ignominious failure.

Out of such experience was born the understanding that there could be no lasting peace, no lasting security, no prosperity in this land unless all enjoyed freedom and justice as equals.

Out of such experience was born the vision of a free South Africa, of a nation united in diversity and working together to build a better life for all.

Out of the many Sharpevilles which haunt our history was born the unshakeable determination that respect for human life, liberty and well-being must be enshrined as rights beyond the power of any force to diminish.

These principles were proclaimed wherever people resisted dispossession; defied unjust laws or protested against inequality. They were shared by all who hated oppression, from whomsoever it came and to whomsoever it was meted.

They guided the negotiations in which our nation turned its back on conflict and division.

They were affirmed by our people in all their millions in our country’s first democratic elections.

Now, at last, they are embodied in the highest law of our rainbow nation.

This we owe to many who suffered and sacrificed for justice and freedom.

Today we cross a critical threshold.

Let us now, drawing strength from the unity which we have forged, together grasp the opportunities and realise the vision enshrined in this constitution.

Let us give practical recognition to the injustices of the past, by building a future based on equality and social justice.

Let us nurture our national unity by recognising, with respect and joy, the languages, cultures and religions of South Africa in all their diversity.

Let tolerance for one another’s views create the peaceful conditions which give space for the best in all of us to find expression and to flourish.

Above all, let us work together in striving to banish homelessness; illiteracy; hunger and disease.

In all sectors of our society – workers and employers; government and civil society;
People of all religions; teachers and students; in our cities, towns and rural areas, from north to south and east to west – let us join hands for peace and prosperity.

In so doing we will redeem the faith which fired those whose blood drenched the soil of Sharpeville and elsewhere in our country and beyond.

Today we humbly pay tribute to them in a special way. This is a monument to their heroism.

Today, together as South Africans from all walks of life and from virtually every school of political thought, we reclaim the unity that the Vereeniging of nine decades ago sought to deny.

We give life to our nation`s prayer for freedom regained and continent reborn;

God bless South Africa;
Nkosi Sikelel’ i Afrika;
Morena boloka sechaba sa heso;
God seen Suid-Afrika.

I quote President Mandela’s full speech above to remind us all – on this fifteenth anniversary of our Constitution - of President Mandela’s commitment to the Constitution and the supremacy of the Constitution enforced by a fearless Constitutional Court. Lest we forget.

In any case, they phone you and (without knowing you from a bar of soap) start insulting you and tell you what a useless excuse for a human being you are. They might even pour a cup of tea over your head or assault you — but only if you are lucky. If you are unlucky, well, you guessed it, they will force you to watch recordings of Steve Hofmeyer performing at Huisgenoot Skouspel, or some such event. They complain bitterly about how they have been persecuted since 1994 (usually calling from next to the swimming pool at their house or from a brand new top of the range car masquerading as a truck). They call you a self-hating Afrikaner and a communist (or, worse, an ANC lackey) and a useful idiot (not knowing that they are quoting Joseph Stalin).

And all this because you might have suggested that the Afrikaans taalstryders making a living out of whipping up anxiety and fear about the demise of the Afrikaans language are at best opportunistic exploiters making a fast buck out of the fear and misery of others and at worst just pining for the good old days of apartheid when they were in power and could stuff up the country all by themselves.

But here goes. On Sunday, the main headline in Rapport (the Afrikaans version of the Sunday Times - only far more, you know, white, and with more headlines about Rugby and about NG Kerk infighting about the existence of the devil and whether dominees should be allowed to exorcise said devil) screamed: “GEE TERUG ONS TAAL!” (Give us back our language!) It told the story of some “brave” Afrikaners who are taking on the University of Stellenbosch, allegedly because that University is not ensuring that lectures are predominantly or exclusively conducted in Afrikaans (with sign language interpreters at hand to accommodate black students).

Some lecturers want to attract the best students of all races to study at Stellenbosch (something that is not happening at the moment) and want to appoint the best lecturers to teach at the institution (as it recently did when it appointed the brilliant Prof Achille Mbembe in the Sociology Department), but this would not be possible if everyone was required to speak and lecture most of their courses in Afrikaans. They are called the verraaiers or hensoppers or bootlickers of the new elite (in private they are said to lick other parts of the anatomy of the new elite too).

Others wish to ensure that the University remains dominantly and proudly Afrikaans, which would relegate it to the status of a second or third tier parochial institution for the children of whites (including, ironically, many English speaking whites whose children attend Stellenbosch University because it remains overwhelmingly white) and a few coloured students from the platteland.  They claim the University does not need to attract black students (and it is sometimes implied that attracting black students would lower standards) because the Constitution protects language rights.

Afrikaners, they argue, have a right to their own Volkstaat-like University in pretty Stellenbosch where their children could study (and drink lots of red wine), free from the evils of affirmative action that would open up the university to black students and staff. In the eyes of this group, only Afrikaners (they are still debating whether Afrikaans speaking coloureds are Afrikaners or not) should continue to benefit from affirmative action — just as they have benefited from affirmative action for many decades after the rise of the National Party. Standards would be maintained by forging links with some of the better Universities in the Netherlands and Belgium, and embarking on joint projects about multilingualism and how to run a country without a government.

Well, at first it might appear as if this second group have a point. After all, section 6(1) of the South African Constitution states that there are eleven official languages in South Africa, namely Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. However, because the ANC negotiators were much better at their job than the old National Party negotiators, this section says much less than the Volkstaters would like to think.

Section 6(2) recognises the “historically diminished use and status of the indigenous languages of our people”, and places a duty on the state to take practical and positive measures to elevate the status and advance the use of these languages (somthing the state has not done at all over the past 18 years). Because Afrikaans has not been historically diminished (it was relentlessly promoted during the apartheid years and is therefore still one the most understood and spoken languages in South Africa – along with English and isiZulu – and hence does not fall within the ambit of this provision.

Moreover section 6(3) states that the national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages. All official languages must enjoy “parity of esteem and must be treated equitably”.

This does not mean that languages should be treated equally — the term “parity of esteem”, borrowed from the Irish Constitution with a little help from Kader Asmal, means far less than equal treatment. It means that they must be treated fairly, given the economic, political and social context. Given the systematic promotion of Afrikaans during apartheid, given the dominance of English as a world language (for the time being at least) and given the neglect of other indigenous languages over the years, these sections might well mean that other indigenous languages had to be promoted vis-a-vis Afrikaans.

If Parliament adopts the National Language Bill now before Parliament and the national government finally formulates a national language policy regarding the use of official languages for government purposes (as required by section 4 of that Bill), the taalstryders  might get a shock. Other indigenous languages might well — very legitimately — be preferred above Afrikaans in this language policy, the latter being a language who had been very much affirmed and promoted for 50 years during the apartheid rule.

Referring to Stellenbosch particularly, taalbulle argues that the right to receive education in the official language or languages of one’s choice in public educational institutions is guaranteed in section 29 of the Constitution. They fail to note that section 29(2) also states that this will only happen “where that education is reasonably practicable”.

In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account: equity; practicability; and the need to redress the results of past racially discriminatory laws and practices.

Section 30 underscores this point by stating that while everyone has the right to use the language and to participate in the cultural life of their choice, these rights may not be exercised in a manner inconsistent with any provision of the Bill of Rights – including the provisions of the non-discrimination clause. Using a language policy that would exclude many black South Africans from accessing the excellent education at Stellenbosch is therefore not permitted by the Constitution as it infirnges on section 9(3) of the Constitution, read with section 30.

Where a University teaches some courses exclusively in Afrikaans, the effect of this policy would be to exclude many black South Africans from studying there and from teaching at this institution. Ironically, as long as Stellenbosch remains a University where quality education is provided and quality research is conducted (as it presently still is), the effective exclusion of black South Africans form the University through any language policy would contravene the non-discrimination clause in the Constitution. This is because the policy deprives many black South Africans from accessing a very high standard of education they might not receive at many other Universities and this disadvantages black students and staff.

This fight is only going to end one way and that is with the so called verraaiers winning the argument and the fight. If the taalbulle wanted to have a shot at retaining their white privileges at Stellenbosch they should have ensured many years ago that slightly less dim-witted people negotiated on their behalf at the Constitutional Assembly.

This is not to say that ons taal will disappear. On my iPod I have music from the early days of the Afrikaans music revival (Bernoldus Niemand, Koos Kombius, Johannes Kerkorrel), from avant-garde bands like Buckfever Underground and Die Antwoord, from Jan Blohm and Karen Zoid. On my bookshelf I look at books by Marlene van Niekerk, Ingrid Winterbach, Antjie Krog, Johann de Lange, Loftus Marais and Deon Meyer. When I want to express my anger in a colourful way, I choose one of the wonderfully expressive Afrikaans phrases available to me (but is unfortunately not polite enough to repeat here).

Ag, if only the taalbulle would stop fighting for the taal things might still turn out well for Afrikaans. Because with friends like them, who needs enemies?

As things stand, they are giving Afrikaans a bad name with their selfish and jingoistic crusade. By painting themselves as victims (“met ‘n wit brood onder elke arm vasgeklem” – “with a white bread clutched under each arm” - as my mother would have said), they are creating the impression that Afrikaans is being used as a proxy to try and retain the dominant white status of Stellenbosch University. Down that road lies permanent ruin for our taal.

If you want to save ons taal, why not write a poem, a short story or even an email in beautiful Afrikaans? Teach your children to use the language well. Engage in real debates – in Afrikaans, English or another indigenous language – about the real issues that face our nation: poverty, crime, corruption, racism, discrimination, homophobia, homelessness, hunger. Stop protecting the ill-gotten privileges of the apartheid years and stop acting in ways that will give the appearance of wanting to protect these privileges. Become an ambassador for the language through words and deeds – including words and deeds that demonstrate an understanding of the horrors of our past and its effect on the lingering injustices in our country. But please, spare me the moans and groans about the need to “save” the language at Stellenbosch University.

Yet, as Minister Jeff Radebe pointed out this weekend in the Sunday Times, the precedent set by the Constitutional Court in the Mohamed case  makes it illegal for the Hawks and the SANDF knowingly to send people to their possible death – even if the immigration law had been followed, which allegedly was not done in these rendition cases to Zimbabwe. A paper trail was published in the Sunday Times, confirming that a number of individuals were arrested as “illegal immigrants” by the Hawks and taken over the border at Beit Bridge, where they were handed to Zimbabwean police, and then killed.

In a move that is said to put him on a collision course with his cabinet colleague Nathi Mthethwa, the Minister of Police, Minister Radebe said the renditions “fly in the face of our constitution and its values”. Radebe said the rendition claims were “very worrying” – particularly as the allegations “were levelled not only against organs of state, but ones responsible for law enforcement and security”.

The actions flout the Immigration Act and also breach a government moratorium on deportations to Zimbabwe and the United Nations Convention Against Torture, which South Africa ratified in 1998. However, Mthethwa on Friday told the Sunday Times “there is nothing in front of [me]” to warrant an investigation. He said the rendition claims involving the Hawks were “baseless and imaginative”. It would not be the first time that the political leadership of Police turn a blind eye to unlawful and unconstitutional actions of members of the law enforcement agencies.

After all, there is often a huge gap between the legal and constitutional protections afforded individuals in South Africa and how individuals are actually treated in real life. While the Constitution prohibits unfair discrimination against anybody because of his or her race, against women and against gay men and lesbians and while the Equality Act similarly prohibits private institutions and individuals from discriminating, discrimination is still rife – also inside the Police Service and in the way it deals with complaints.

Over the years I have fielded several calls from young men and women who had been raped and then tried to get the police to investigate these crimes. In each case the complainant was not successful in getting the Police interested in his or her case – and the only reason for this was that the rape survivors happened to be gay or lesbian. In one case I was told that a Police officer from Atlantis had laughed at a young man who wanted to report a rape because he was “‘n moffie” and hence deserved to be raped. I have also had long and fruitless arguments with members of the Harare police station in Khayelitsha to try and get them to investigate the rape of a lesbianwoman by a man known to the rape victim and the police.

It appears that the position of undocumented Zimbabweans in South Africa is often no different, something that Minister Radebe – to his credit – seems very concerned about. It may be helpful to remind the law enforcement officials in South Africa that apart from the Immigration Act (which they are supposedly bound by) the Constitution itself makes this kind of thing unlawful.

It was an early spring day in Cape Town back in 1999 when South African government agents illegally handed Mr Mohamed over to agents of the FBI. The agents rushed Mr Mohammed onto a FBI aeroplane and the next day he was brought before the Federal District Court in New York on charges relating to the horrific bombings of the US embassy in Dar es Salaam the previous year. Mr Mohammed faced the death penalty if convicted of the charges brought against him.

While his trial was proceeding in New York, his lawyers approached the South African Constitutional Court, who declared that his handing over to US agents had been unlawful, in part because the South African government had handed him over to the US without a guarantee that he would not face the death penalty if convicted in the US.

The Constitutional Court pointed out that our Constitution outlaws the death penalty and found that the South African government had acted contrary to the underlying values of the Constitution. Although it had a duty to protect the right to life and the right against cruel inhuman and degrading treatment and punishment of everyone in South Africa, it had failed “to lead by example” in this case.

According to the Court, this unlawful action was particularly serious because the government had a special duty in our young democracy to foster the values entrenched in the Constitution.

In Mr Mohamed’s case, the US Federal Court found that it was not bound the judgement of the South African Constitutional Court. After all, the judge pointed out, the United States was a sovereign state and a South African Court could not order a US court how it should deal with its accused. Although Mr Mohamed was eventually sentenced to life imprisonment, this was only because of a technicality which allowed the South African judgment to be tendered as mitigating evidence. But this does not mean that the South African can “render” suspects to a foreign government if they might be tortured or killed. They cannot.

Even if the Immigration Act is followed to the letter (which it seldom is), South Africa is therefore constitutionally prohibited from sending any Zimbabwean who is illegally in South Africa and is suspected of committing a very serious crime back to Zimbabwe if there is any well-founded fear that the Zimbabwean government or its formal or informal agents will murder or torture the suspect. I suspect that this is why these renditions occur without following the requirements of the Immigration Act.

Ordinary South Africans, whose views might sometimes be clouded by more than a tinge of xenophobia might think that this has nothing to do with them. But if we allow our law enforcement agencies to continue to act in such a lawless manner when dealing with Zimbabweans, cases where they deal with South African citizens in a lawless manner will also increase. As things stand, many of us who used to fear and loath the South African Police Force during the apartheid years but gave them a chance when they were supposedly turned in to a Police Service who was tasked with protecting and not terrorising the population, are having second thoughts.

In my dealings with the police I have been shocked by the attitude of some (but not yet all) police officers. Once I was asked the most racist questions by a police officer who seemed to assume that all black people are by definition criminally inclined. On another occasion there was an attempt to extract money from me, something, I am told, that is quite common in some parts of South Africa. While some police officers have dealt with me in a helpful and professional manner, others have made my hair stand on end with the prejudices and their lack of respect for the basic provisions of the law or the Constitution. I could only surmise that they were not taught much about respect for human rights or if they had, they had not internalsied those lessons.  

Maybe Minister Radebe should raise this issue in the cabinet in order to ensure that cabinet instructs the Minister of Police to implement measures that would try and instill a human rights culture in the Police. When ordinary citizens fear, instead of trust, the Police, they will not co-operate with the Police. And if there is no co-operation the Police will not be able to do their job properly.