Thought leaders take a long, hard look at South Africa’s Constitution

22 Mar 2023

South Africa’s Constitution is under the spotlight at a three-day conference in Gauteng hosted by the Department of Justice and Constitutional Development.

President Cyril Ramaphosa on Wednesday opened the floor to what would inevitably be stark criticism from human rights defenders, lawyers and other stakeholders who took part in panels looking at whether South Africa’s Constitution serves the purpose it was written for.

Ramaphosa gave the keynote address at a three-day National Conference on the Constitution in Midrand, Gauteng. After highlighting the many socioeconomic crises facing South Africa, Ramaphosa said he hoped the conference would help shape a way forward, with special emphasis on the independence and power of the judiciary in promoting fundamental rights.

He gave room for delegates to question whether the Constitution has served its purpose.

“I will at the end pose whether what I’ve just said has really manifested itself in the way it was envisaged in terms of the transformational purpose that our people expected,” said Ramaphosa.

“The purpose of the Constitution is to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights…

“Working together with Parliament, I think there should be an opportunity for us to look at our Constitution as a product of long and protracted struggles for freedom, for justice and a better life for all the people of our country.

“It should also reflect on matters such as how we deal with corruption, crime, national security, and how these issues impact the exercise and the protection of human rights. This conference gives us an opportunity to reflect on the road that we must traverse to strengthen our constitutional democracy.”

Read more in Daily Maverick: Marvellous to behold, nothing inside — is social justice in South Africa merely a Potemkin village promise?

The Department of Justice and Constitutional Development is hosting the conference, which ends on Friday.

Presentations in the next two days will be around:

Land reform;

Governance and electoral reform;

Corruption and its impact on constitutional democracy and human rights;

Reflections on the state of constitutional democracy,

Transformation of and building an independent judiciary; and

The effectiveness of the legislature in advancing constitutional democracy.

Speakers included former Public Protector Professor Thuli Madonsela, Professor Barney Pityana, Justice Albie Sachs and Professor Richard Calland.

Empty on the inside

Madonsela said citizens feel the Constitution looks glorious on the outside but is empty on the inside.

“We are not where we are supposed to be in terms of democratic values, social justice, and fundamental human rights, where every citizen’s life is improved and every person’s potential is freed,” said Madonsela.

She said this was evident in the high levels of femicide, small businesses not thriving, and unemployment, resulting in half of the population living under different levels of poverty.

“When you are poor, there is no dignity and yet the Constitution promises dignity,” said Madonsela.

Delegates echoed these sentiments. One speaker, Mashile Rapatsa, asserted that South Africans had been duped into believing the SA Constitution was the best in the world, but he doesn’t see that when walking around the streets of his neighbourhood.

“The Struggle in South Africa wasn’t about producing the best Constitution in the world, it was about justice, redistribution of resources, saying black people matter in this country, let them also get a share of the resources.

“This narrative [of South Africa having the best Constitution in the world] came from America and made us comfortable. We have a good judiciary and the Chapter 9 institutions, but we need to look at the capacity of the state to fulfil its duties.

“With the middle class bearing the brunt of all social services, with unemployment rising, the state will soon be fully incapacitated.”

Justice Albie Sachs said though he understood South Africans’ pessimism, right now he believes there is a lot to be optimistic about. He looked back on the struggle for freedom and what a feat it was to then draw up the Constitution.

“I feel pride in our Constitution — it’s an African Constitution made in Africa.

“When people say the Constitution has done nothing, they simply take for granted that workers can’t be sacked without any kind of remedy; millions of people all the time are protected by the Constitution in their workplaces, they take that for granted.

“I am proud of the fact that somebody who happens to love someone of their own gender is enabled to live as a free human being in this country. I’m exceptionally proud that we set an example for Africa and the world. I’m proud that we have the term ‘non-sexism’ as a term equal to the term ‘non-racism’,” said Sachs.

He said the Constitution was world-renowned today because all parts of society, women, men, and all races had a say in it. And if housing, water, and other services were not promised in the Constitution, people would not say the Constitution is not useful.

“Because we tried for more, now we are blamed for everything. To me, it’s a huge achievement that we take for granted the freedoms we’ve got, we’ve won, we’ve won so hard.” DM/MC

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Empty on the inside