An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
“The future is certain, it is the past that is unpredictable” – Evita Bezuidenhout
I have been fascinated by the recent spat between Justice Malala and Pallo Jordan (later joined by an unnamed writer on the ANC Today website and by the former editor of an ANC underground publication Paul Trewhela), ostensibly about media freedom in South Africa but to a large degree about South Africa’s recent past and the role of the ANC in the liberation of the country.
Jordan lambasted Malala for his columns that have been sharply critical of the ANC, arguing that hundreds of ANC members sacrificed their youth to fight for freedom, before concluding:
Thanks to their efforts, today Malala enjoys the freedom to insult them with impunity in wordy, self-righteous columns in The Times, certain that he won’t spend that night in prison.
Malala shot back that he was not at all sure that he would not spend the night in jail. He pointed to an article by ANC veteran Oyama Mabandla published in African Affairs in 1990, which argued that: “large chunks of the ANC hates free speech and hates people who speak truth to power. Which is why this same ANC – that Jordan claims fought for me – arrested and detained him for six weeks in 1983”. Malala continued:
The ANC’s useful idiots arrogantly claim that “it was the ANC” that fought to give us our freedom. Rubbish! While the ANC was detaining the likes of Jordan or torturing young women in its camps, it was people like my young friends and relatives who were, under the banner of the Mass Democratic Movement, rendering the apartheid state unworkable. It was Desmond Tutu who led me and other young students to the beaches of Cape Town to defy apartheid laws.
These and later exchanges do not only highlight the fact that our history is highly contested, but also how important it is for the protagonists that their version of our history becomes the officially accepted one. The longer the ANC stays in power and the more the party is plagued by “the sins of incumbency”, the more important it becomes for the ANC that it is seen as the sole liberator of South Africa. But the more the ANC pushes for the uncritical acceptance of this “official” version of our history which places the ANC at the centre of our liberation, the more other voices will be raised to contest this version in an effort to undermine the moral authority and legitimacy of the governing party.
I am not sure either Jordan’s or Malala’s version of our history tells the whole story. Although we all have a tendency to want to fit all past events into one unified and easily digestible meaning-giving story with good guys on the one side and bad guys on the other, and with this or that leader or organisation playing a decisive role, history is usually a far more complicated and messy affair. We usually make sense of past events by ignoring those events that do not fit into our preferred story and by highlighting those events that do conform to what we believe happened and which serve our own interests.
There is no objective past, because there is no objective human being. We choose the version of our history that suits our ideological commitments, our emotional disposition and our political aims. Thus the apartheid regime told South Africa’s history in a way that reinforced and celebrated the centrality of Afrikaner Nationalism in our history in an effort to justify its rule and its enforcement of apartheid. And the history taught in the United Kingdom largely glosses over the rather problematic aspects of its colonial past, while those of us who were colonised might insist that our history highlights the injustices of colonialism.
Be that as it may, the exchange is interesting for at least two other reasons. First, it reminds us of how important our sense of history is for our understanding of the present and for the future direction of our country.
In George Orwell’s novel, 1984, the motto of the Ministry of Information proclaimed that: “He who controls the past, controls the future; and he who controls the present, controls the past.” As I understand it, Orwell wanted to warn us against the power of a totalitarian state to control how citizens think.
But this motto has some relevance even for people living in a democratic state. Is it not true that even in a democratic country, the powerful and influential in a society (the government, the media, the military, big business), get to decide what the official and sot accepted version of our history is? And, of course, this is important because our view of history – what events we choose to focus on and what events are ignored – shapes our response to that history, and hense our future.
History is then, to some degree, about control over the imagination and the beliefs and political views of the population. No wonder the ANC wants to promote the version of history in which it alone liberated South Africa from the evil apartheid regime.
Given the fact that the ANC did play a pivotal role in isolating the apartheid state diplomatically and economically and given the fact that Nelson Mandela will probably always have a firm grip on our imagination as the father of our democracy, I do not have too much of a problem with this aspect of the romanticised version of our history presented by the ANC. Every country has a founding myth, and ours at least has a leader who is revered and loved all over the world. We could have done worse with the founding myth of our democracy.
From a constitutional perspective, the second aspect of this debate is more worrying. When some ANC leaders now say that they “gave us our freedom” (usually implying that because they gave us our freedom they should be trusted not to take away that freedom), they present a shockingly paternalistic and somewhat authoritarian attitude towards the people of the country. This view also implies that rights do not belong to people who enjoy them merely because they are human beings with an intrinsic moral worth, but that rights are held by organisations or governments and can therefore be “given” (and also taken away) by such organisations or governments.
Ordinary human beings do not feature in this version of our history. The struggles of the millions of people who resisted the apartheid regime and fought for freedom are all subsumed under the banner of one organisation – as if all of us ordinary people played no role in our own liberation but was liberated by a single organisation while we passively looked on, as if we were all mere robots following ANC instructions from Lusaka.
This turns all citizens into the passive recipients of freedoms and rights, bestowed on them by a benevolent father. It turns us all into children who have no say in our destiny, no agency of our own, no inherent right to decide for ourselves who we are, what rights we want to safeguard and how we want to live our lives and organise our society.
Like small children we are expected to entrust our lives and our future to our father who will look after us and keep us safe – as long as we obey him and do not question his authority.
But in a constitutional state, rights and freedoms cannot be given and cannot be held by one organisation or by the government or the state, and neither can it be taken away by that organisation, the government or the state. These rights and freedoms belong to all of us. We the people hold these rights and freedoms merely because we are human beings with an inherent human dignity. A particular organisation (or, more likely, different organisations) may have helped us to claim our inherent rights and to make them real, but this does not make these organisation the custodians of our rights.
We are the custodians of the rights and freedoms now enshrined in the Constitution. As these custodians, we are not passive citizens who must wait for the government to grant us our rights. Instead, we are active citizens with the right to demand that whomever governs us does so in a manner that respects and protects our rights and freedoms. If the government of the day fails to protect and advance our rights, we have a duty to ensure that they do protect and advance our rights. If they do not, we are free to take action – within the limits of the law – to ensure that our inherent right to dignity and freedom remains respected and protected.BACK TO TOP