As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Tomorrow will mark 57 years since the Freedom Charter was adopted in Kliptown way back in 1955. The Charter has been consistently in the news because it is invoked by “radicals” as the source that lends legitimacy to the call for nationalisation of (at least) the mines, the banks and monopoly industries. In some circles it is also invoked as the justification for redistribution of land without compensation. The Freedom Charter is a text and, as such, interpretable. Of course this does not mean that we can read in it whatever it is we want to read in it. Yet, it is also the case that documents like these (availing themselves of rather open-ended language) call for contextual interpretation. This means, simply, that some terms in the Charter could have a contested meaning, precisely because of the fact that contexts vary.
A businessman from a large mining company just the other day told journalists that the Charter actually does not call for nationalisation but for sharing of resources across racial divides (whatever that may mean). At the same time you can read on the ANC’s website next to the text of the Charter, the following: “The new Constitution of South Africa included in its text many of the demands called for in the Freedom Charter. Nearly all the enumerated concerns regarding equality of race and language were directly addressed in the constitution, although the document included nothing to the effect of the nationalization of industry or redistribution of land, both of which were specifically outlined in the charter.” So although nationalisation is “not ANC policy”, it seems to recognize that the Freedom Charter indeed calls for nationalisation and that the revolutionary youths may not be so far off the mark when they invoke the Freedom Charter in their discourse about nationalisation. Indeed, it would be fair to surmise that the Freedom Charter is invoked in the discourse because the Constitution does not provide for a pro-nationalisation interpretation.
But why is the Freedom Charter invoked as opposed to, say, the collected works of Vladimir Lenin. One of the answers here goes back to the notion of authority, the subject of my first post. Essentially, the invocation of the Freedom Charter on both sides of the nationalisation debate is premised on the belief that the Charter (still) has authority as the founding document of post-apartheid South Africa. I do not want to deny that the Freedom Charter does and should continue to enjoy such authority. After all, as the ANC correctly points out, it is the origin of our Constitution. But I think that the nature of the Freedom Charter’s authority should be borne in mind more often, because the Charter on its own, never enjoyed legal authority, such as, for instance, the Constitution and the laws that are subordinate to it.
The Freedom Charter’s authority is primarily symbolic. What do I mean when I say that it is a symbol? A symbol is a sign – it represents meaning. It is a kind of shorthand for a myriad of concepts and claims with which it is associated and which can be subsumed under it. As a signifier it stands for the demands for the liberation of an unfree people from an oppressive and racist government. As a political document, it represents the people’s resistance to the abuse of governmental political and economic power during the Apartheid era. For others it represents the ANC’s banning and for still others “Freedom Charter” evokes images of incarceration, of unfreedom, for it was immediately after the adoption of the Charter that the government actively intensified its program of arresting and trying activists as traitors of the country.
The Freedom Charter in a way represents the entire struggle against Apartheid in the same way that the name “Nelson Mandela” represents more than just the man, Nelson Mandela. It enjoys this symbolic authority not separate from, but because of its status as a historical document. It is obviously impossible to dislodge the Charter from its historical and political context as a document that is dated and thus originates at a specific time and place and therefore “documents” a history.
But, as mentioned, the Freedom Charter also serves as the symbolic precursor to legal authority in post-Apartheid South Africa, although it is not directly that authority. The Freedom Charter thus projects itself out of its history and into its future in its very anticipation of a country that shall legally be free of apartheid through the enactment of the Constitution. And the Freedom Charter also projects itself into our present in the way I have indicated above – it is thus much more than a historical document, its meaning is contested here and now. The controversial wording is as follows: The mineral wealth beneath the soil, the Banks and monopoly industry shall be transferred to the ownership of the people as a whole”. Transfer to the “ownership of the people as a whole” can mean a whole lot of things and yes, it could simply be a reference to the removal of racial ownership restrictions that was the order of the day during apartheid. But it could also mean something more. After all, it could very well be that the drafters in 1955 (not having experienced yet the total disaster that was institutionalized communism) thought of nationalisation as a real possibility – a nationalisation that would be a step in the socialization of the people as a whole, not a means without this end.
But such an “intentionalist” or “originalist” interpretation no longer suffices. It is not enough to say that the drafters intended nationalisation and therefore we should nationalize. It is necessary to ask what the Freedom Charter demands of us today, in other words, what it means to say today, in this context, coming from the past. Too often the political rhetoric invokes the Freedom Charter as a kind of spectre in nationalization debates. But this obfuscates the Freedom Charter’s other great demands, other ways in which it haunts the present through demands that enjoy legal authority through the Constitution and through others that do not. I would like to ask what the following demands in the Freedom Charter mean for us today. How does it haunt us and who does it haunt? And more pertinently, what do they require us (still) to do?
“Education shall be free, compulsory, universal and equal for all children;
Higher education and technical training shall be opened to all by means of state allowances and scholarships awarded on the basis of merit;
Adult illiteracy shall be ended by a mass state education plan”
“All people shall have the right to live where they choose, be decently housed, and to bring up their families in comfort and security”
and also, perhaps most importantly;
“Peace and friendship amongst all our people shall be secured by upholding the equal rights, opportunities and status of all”.BACK TO TOP