Steve Biko Foundation board member and founder of Letsema Circle Dr. Mamphele Ramphele delivered this speech at a Dispatch Dialogue on March 20, 2012 discussing the judiciary and perceptions that the supremacy of the Constitutional Court is under threat.

Is The Constitution at Risk?

There is enough concern about the utterances by ANC leaders and government officials to suggest that not all is well in our constitutional democracy. There is a clash of values between those who believe in the sanctity of our constitutional democratic foundations and those who see them as an obstacle to the “second transition.” At the heart of the issue is lack of clarity about the difference between the workings of a Parliamentary vs a Constitutional democracy. It is my firm view that we are paying the price of our failure to educate for democracy. We assumed that a people who have never experienced life as citizens of a democracy would simply assume the rights and responsibility of one as sophisticated as ours.
It does not seem to have sunk into the minds of many in government (and probably not even in the minds of the majority of the people of South Africa) that our governance system is a Constitutional Democracy and not simply a Parliamentary Democracy. The Constitution is sovereign and can only be changed by a 75% majority in Parliament.
The implication, as Prof. de Vos concludes, is
that (in the absence of a coup d’état) President Zuma’s wish that the powers of the Constitutional Court should be reviewed and amended is never going to fly. He will just have to take his chances in the courts (as he has done on many previous occasions, often with great success) when various cases that could affect his corruption and bribery prosecution comes before the judiciary. Meanwhile, he should really think before he talks.

Historical Context
To place the current onslaught on our Constitution in its historical context, it needs to be remembered that as a result of its experience of the abuse of power by the then minority-parliamentary state, the ANC, in its Harare Declaration of 1989, insisted on a Bill of Rights as a cornerstone for negotiations about the future. In a democratic South Africa it said,
All shall enjoy universally recognised human rights, freedoms and civil liberties, protected under an entrenched Bill of Rights. South Africa shall have a new legal system which shall guarantee equality of all before the law. South Africa shall have an independent and non-racial judiciary.
When he inaugurated the Constitutional Court on February 14 1995 former President Mandela made the now famous remark about the role of the Constitutional Court:
The last time I appeared in court was to hear whether or not I was going to be sentenced to death. Fortunately for myself and my colleagues, we were not.
Today I rise not as an accused, but on behalf of the people of South Africa to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy.
Our current president is betraying the legacy of his own party - the ANC. Unfortunately he is not alone in this betrayal. We can rightly assume that because it is the President who uttered these words, he has the support of his cabinet and/or the leadership of the ANC.
In fact, in September last year, Gwede Mantashe, the Secretary-General of the ANC accused the Constitutional Court judges of being “hostile to us, of being driven by selfish interests and of threatening the stability of government “
In November of last year Manyi, then the Presidential Spokesperson, announced that the government would be examining how Constitutional Court decisions have affected the lives of ordinary South Africans and how they have influenced socio-economic transformation and reform of the law.
What is clear is that there is a conflict of values taking place – it’s about transformation and about who is best able to defend the spirit of our Constitution.
There is nothing wrong with looking at whether or not poor people have access to justice, to what extent the judiciary has been implementing the letter and spirit of the Constitution - the question is how this is done – the devil is clearly in the detail.
Recognizing that the Constitution is the cornerstone of our young democracy, but at the same time, that it is not perfect, I, together with other publicly known South Africans, participated in the founding of the Council for the Advancement of the Constitution (CASAC). The word Advancement was deliberately chosen above words such as Defence because “progressive constitutionalism” is a pivotal founding principle. The other principles are as follows:
1. As the supreme law of the land, the Constitution provides a framework for the social and economic transformation of South Africa, and for a deliberative, participatory and inclusive democracy. This framework together with its underlying values and founding principles needs to be protected and advanced.
2. The constitution itself must be subject to on-going critical appraisal to assess its efficacy as the needs of the country change. There may be a need to debate and lobby for constitutional and legislative reform to enhance the legitimacy of the democratic political process. The Constitution must be a living, not a static document that evolves to deepen democracy.
3. The principle of the rule of law is a critical building-block in the pursuit of the concept of constitutionalism; public and private power must be exercised within the law in order to retain legitimacy and to enhance a culture of responsibility and accountability in order to guard against the arbitrary use and abuse of power and authority.
4. If it is to dispense justice that promotes substantive equality as well as procedural fairness, judicial independence is an indispensable element, if not a pre-requisite for the rule of law and the integrity of the court system.
CASAC thus upholds the South African Constitution as a platform for democratic politics and the transformation of society. It also upholds the core principles of the Constitution such as the promotion of socio-economic rights, judicial independence & the rule of law.
One organization cannot on its own accomplish all of this. The advance and defence of [To both advance and defend] our constitution requires the involvement of active citizens who defend our so-called first generation rights such as security, privacy, freedom of expression, freedom of association, freedom of movement and residence and so on, as well as to actively work for second generation rights – universal access to housing, health-care, food, water and a healthy environment.
A major problem is that the vast majority of South Africans are passive ‘subjects’ rather than active ‘citizens’. We sit back and expect government to ‘deliver’, and if it doesn’t, our only recourse, it seems, is to protest by (at best) marching in the streets and (at worst) burning the local clinic or school.
Together with Prof Njabulo Ndebele and Mr Bobby Godsell, we have formed a Trust called the Citizens Movement for Social Change - which aims to engage all South Africans who are willing to embark, on a journey of transformation “from subjects to citizens” - so that together we can create the just, prosperous, inclusive and equitable South Africa that our Constitution was designed to promote.
WHAT DARK CLOUDS ARE GATHERING ON THE HORIZON?

 The Traditional Courts’ Bill
• Empowers traditional leaders to single-handedly make and apply customary law;
• That no one (not even a passerby) is allowed to opt out of customary courts;
• That traditional leaders are empowered to impose severe punishments – eg forced labour, loss of customary entitlements;
• That people (even criminal accused) would not be entitled to legal representation and women not guaranteed self-representation.

 Where will this Bill Apply?
• Short answer: only in the former Bantustans – and wall-to-wall within them
• Creates a separate and authoritarian legal regime for the areas of South Africa where poverty is most concentrated, and the majority of residents are women (59% according to the census)
• Effectively strips people living in those areas of their citizenship rights and returns them to the status of ‘tribal subjects’
• A recent example is a case of a widow from Cadu. She has been punished by the local headman for daring to call the police to report house breaking episode in her home! She is running an HIV/Aids prevention project as well as a self-help sewing entreprise. For her temerity she was fined a sheep, 2 Bottles of Bandy, 2 Cases of beer, 2 Large containers of Juice. The community has been instructed to ostracise her because she is “a spoilt” woman without a husband who will spoil other women and teach them not to respect male authority.”
 Violation of Separation of Powers
• And traditional leaders are given the power to make the law, implement the law and decide disputes arising from their own administrative actions
• Anyone who disputes their actions or authority can be summoned before them and stripped of her land rights
 Balance of Power
• Now we have a Bill that makes it a criminal offence for anyone within those controversial tribal boundaries to refuse to come when summoned by the chief
• Even people who have long contested his authority over them - such as private land owners, people dumped there by removals, or those with older historical rights who refused to co-operate with Bantu Authorities - would no longer be able to ‘opt out’.
 What kind of Chief needs such a law?
• The question in my mind is what kinds of chiefs want this kind of autocratic power?
• We are told that customary law is ‘consensual’, provides for ‘direct democracy’ and enjoys support
• If so, why have chiefs lobbied for laws that re-impose the Bantustan boundaries and create draconian powers within them?

 Where did this Bill come from?
• This is not just some aberration that appeared from nowhere
• It is a Bill that was approved by the ANC Cabinet and the state law advisors and strongly defended by the Dept of Justice in Parliament in 2008
• It forms part of an integrated package of new laws about the powers of traditional leaders that began with the Framework Act in 2003
 Women and Traditional Courts
• We have heard that despite women’s strong submissions to the Law Commission, the current Bill explicitly allows men to represent women in traditional courts ‘according to customary law’.
• This means that the very male relatives who are poised to steal the property of widows are handed carte blanche to represent their ‘victims’ in court.
 Custom and Tradition?
• This is justified on the basis of upholding custom and tradition
• However the forced re-imposition of the Bantustan boundaries indicates their coercive nature
• They build on colonial and apartheid distortions rather than enabling ordinary rural women and men to freely debate and develop custom in line with the Constitution
 Back to the Bantustans and autocratic chiefly power
• Millions of South Africans fought long and hard for the end of the Bantustans and equal citizenship for all South Africans
• That victory is betrayed by these new laws
• Which are all the more shameful for targeting the poorest, most vulnerable South Africans
• How could an ANC Cabinet approve the TCB?
• The passing of this Bill into law will be the ultimate betrayal of the values and principles of our constitutional democracy and a betrayal of the struggle from freedom.
 “Government is throwing us away”
• Rural people complain that with these new laws government is ‘throwing us away. It does not care about us because we are poor’.
• In effect the new laws outsource the governance of 17 million South Africans to traditional leaders under a separate and despotic legal regime
 Why Equality is Better for All
• South Africans are wounded by the legacy of apartheid.
• The Bill adds salt to wounds instead of healing the divided past.
• This Bill robs South Africans of the talents, creativity and energy of rural citizens who would be officially designated “subjects” of unelected traditional leaders instead of engaged productive “Citizens”
• South Africa’s poor performance in post-apartheid era is due to increasingly “Dead Capital” by ignoring the promotion of the development and utilization of the brain power of all citizens.
WHAT CAN CITIZENS DO
No democracy anywhere in the world survives without active citizenship. South Africans have yet to recognize the importance of their roles as the custodians of the constitutional democracy we enjoy today. Part of the reason for this lack of attention is that we assumed that because we have won our freedom we will be able to govern and live in it without any effort to educate ourselves to become stewards of this freedom.
The Citizens’ Movement for Social Change has been formed to correct this error. The focus of this movement is:
- Educating for democracy –how many South Africans are familiar with our Constitution and its principles?
- Developing a Citizen Charter clarifying Rights and Responsibilities of citizenship
- Mobilizing South Africans to confront their passive acceptance of the benefits of freedom without ensuring that they assume the responsibility of holding those in public office accountable for good governance
- Mobilizing South Africans to undertake the Journey from being subjects to become citizens who are active stewards of the constitutional democracy. This journey starts with conversations about values and principles that are appropriate to a human rights culture and constitutional democracy and how the choices we make at the personal, professional and political level must be in harmony. We must be the change we want to see.
CONCLUSION
It is a truism that we get the leaders we deserve. It is up to each one of you here today to commit to become active citizens to protect and advance our constitutional democracy. The future expects nothing less from us.
Mamphela Ramphele
Citizen Movement for Social Change
20/3/2012