Thabo Mbeki | Constitution turns 25: 'Never allow that anything diminishes this noble product'

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The Constitutional Court building.
The Constitutional Court building.
Roger de la Harpe, Gallo Images

The Constitution, which marks its 25th anniversary on Saturday, needs to be protected, writes Thabo Mbeki. He argues that the defence put forward that constitutional democracy is a threat to democracy is part of a counter-revolutionary offensive aimed at overthrowing the ANC, and installing another power who would manage the country, without the "framework of rules" provided by our Constitution.


The Constitutional Assembly, democratically elected in 1994, adopted our National Constitution on 8 May 1996. Accordingly, together as liberated South Africa, we must join hands to celebrate the 25th Anniversary of a truly historic document.

During that famous session when the Constitution was formally adopted, President Nelson Mandela made these defining observations:

"The brief seconds when the majority of Honourable Members quietly assented to the new basic law of the land, have captured, in a fleeting moment, the centuries of history that the South African people have endured in search of a better future...

"And so it has come to pass that South Africa today undergoes her rebirth, cleansed of a horrible past, matured from a tentative beginning and reaching out to the future with confidence."

Just over 50 years earlier, in 1944, Nelson Mandela had been party to the drafting and adoption of the Manifesto of the ANC Youth League which said:

"...Africans reject the theory that because he is non-white and because he is a conquered race, he must be exterminated. He demands the right to be a free citizen in the South African democracy; the right to an unhampered pursuit of his national destiny and the freedom to make his legitimate contribution to human advancement..."

In 1996 therefore, when our country reached out to the future with confidence, it was fulfilling the wish of the youth of 1944 to have the right to an unhampered pursuit of their national destiny and the freedom to make their legitimate contribution to human advancement.

Early conflicts

The first conflict between the indigenous people of our country, in this case the Khoi, and the later colonisers of the peoples of Africa, in this case the Portuguese, occurred in 1503 in Table Bay. The Khoi attacked a group of Portuguese led by Fleet Commander Antonio de Saldanha, which had tried to seize Khoi animal stock in exchange for derisory goods such as mirrors and glass beads. 

An even more serious clash, again with the Portuguese, took place seven years later, in 1510, once more in Table Bay. This time the Portuguese were led by an aristocrat, Dom Francisco de Almeida, Viceroy of the Portuguese East Indies. The Portuguese behaved in an atrocious manner. 

They tried to seize not only cattle and sheep, but also children they would take to Portugal as some kind of trophy. When the Khoi resisted this plunder, De Almeida landed more armed sailors, burnt down the Khoi homesteads and tried physically to confront the Khoi, obviously preparatory to seizing their animal stock.

An intense skirmish broke out. The Portuguese were defeated and retreated to their ships, leaving 67 of the number dead, including Viceroy de Almeida.

All this was 150 years before the arrival in the same Table Bay of the Dutch settler colonialists led by Jan van Riebeeck. Yet those early clashes foretold what proved to be some historic truths.

One of these was that in the event any of the European powers visited our country, the indigenous people would be faced with the threat of the wilful exercise of a domineering and racist arrogance of power on the part of the visitors.

The other was that in the end, the defining issue in the relations between the indigenous African and the sojourner European would be whether the former would, as the youth of 1944 said, have the right to an unhampered pursuit of their national destiny and the freedom to make their legitimate contribution to human advancement.

The liberation movement

This was exactly the strategic objective of our struggle for national liberation. At its strategic core it was driven by the demand to achieve for the majority of our population the right to self-determination. It was precisely in exercise of that right that the elected Constitutional Assembly of 1994 produced the Constitution adopted in 1996.

It is eminently because of this that the Constitution will forever stand out as one of the greatest strategic achievements of our struggle for national liberation, for the victory of the national democratic revolution. It takes this historic place because it defines in the necessary detail the South Africa the millions of our people want and will live forever as one of the first products of our people's exercise of their right to self-determination.

In 1929 the Poet Laureate, SEK Mqhayi, who was also no mean historian, wrote an article entitled I-African National Congress which was published by the isiXhosa newspaper Umteteli on 5 October that year. The article discusses the various efforts from 1887 to unite the various Congresses in the various provinces which ended with the formation of the ANC in 1912.

He reported that the South African Native Congress - SANC (Ingqungquthela) was formed in the Cape Province in 1887. Mqhayi wrote that "its founders assembled from all over Southern Africa..."

However, many in the other provinces outside the Cape felt that rather than being a national organisation, the SANC was essentially a Cape Province formation. Accordingly, some of the leaders of the SANC, including such outstanding patriots as Dr W.B. Rubusana and A.K. Soga, travelled to the Free State and the Transvaal pursuing the objective of the unity of the organisations of the oppressed.

This resulted in the formation of the South African Native Convention in 1910, which took the place of the SANC. Through the efforts of a sympathetic Mr Ramsbottom, who was asked to assist by Dr Rubusana, the inaugural meeting of the Convention was held in the Free State Parliament Building in Bloemfontein in 1909.

READ | A history of the African National Congress

Mqhayi observes that the patriots who played a leading role in the formation of the ANC in 1912, including Pixley ka Izaka Seme and R.V. Selope Thema, were out of the country as the Convention was formed and others, such as George Montsioa and Alfred Mangena could not attend.

Ultimately these approached the South African Native Convention in 1911. Mqhayi then gives this very interesting account:

"Mr Seme laid out the organisation of the government of the United States of America, printed a detailed Constitution of many pages and convened a meeting addressed by Mr Thema in Bloemfontein, where it was agreed to dissolve Dr Rubusana's Convention and adopt the Congress because it was based on the broad American principles. In the event Dr Rubusana (because he was present) said he would report to the members of the Convention..."

It is therefore very clear from this account, that the strategic task to have a Constitution to define the kind of South Africa the South African Native National Congress (ANC) sought was central to the very formation of this Native National Congress.

White minority rule

In reality, this could not be otherwise, because as efforts were proceeding to unite the various Congress formations, the white settler population, supported by the colonial power, the UK, was codifying into law its continuing oppression of the black majority.

The 1902 Treaty of Vereeniging to end the South African (Anglo-Boer) War, signed by the victorious British General Lord Kitchener and the Boer Generals, indicated what was to come where it said:

"The question of granting the Franchise to Natives will not be decided until after the introduction of Self-Government."

That Self-Government was established by the South Africa Act, 1909, which was negotiated and adopted by the 1908-1909, all-white, South African National Convention. The British King George VII assented to the Act on 20 September 1909 and followed with a Royal Proclamation on 2 December 1909 stating the Union would be established on 31 May 1910.

That Act says that the South African National Legislature shall be constituted of two Houses - the House of Assembly and the Senate.

It proceeds to prescribe that Members of these Houses must be: 

"British subjects of European descent."

Further it provides that:

"The control and administration of native affairs and of matters specially or differentially affecting Asiatics throughout the Union shall vest in the Governor-General in Council, who shall exercise all special powers in regard to native administration hitherto vested in the Governors of the Colonies or exercised by them as supreme chiefs..."

To emphasise the continuation of the established colonial policies with regard to the "Natives", it even includes this detail, to guarantee the continuation of the Pass Laws:

"There shall be free intercourse for the inhabitants of the territories with the rest of South Africa subject to the laws, including the pass laws, of the Union."

Ultimately the black oppressed were told in unadorned language what the system agreed by the 1908/9 white South African National Convention, and approved by the UK Parliament and UK King George VII, meant.

Addressing the all-white House of Assembly in 1948, the apartheid Prime Minister, D.F. Malan, said:

"Mr. Speaker, today South Africa belongs to us, where we shall be introducing legislation to implement our policy which we call Apartheid - the separation between the races. Races will live and travel separately. Education will be separate for all groups at all levels. Native reserves will become Black homelands. Work fitting for the White man will be reserved for him and him alone. Apartheid rests on three unarguable foundations - Afrikaner Experience - OUR experience, Scientific Proof that the White man is a superior being, and Biblical Witness. Apartheid represents divine will."

Malan also said: 

"The difference in colour is merely the physical manifestation of the contrast between two irreconcilable ways of life, between barbarism and civilisation, between heathenism and Christianity, and... overwhelming numerical odds."

Speaking even earlier, on 16 December 1938 at Ncome (Blood) River, he said:

"Here at Blood River you stand on holy ground. Here was made the great decision about the future of South Africa, about Christian civilisation in our land, and about the continued existence and responsible power of the White race... The Voortrekkers' freedom was, above all, the freedom to preserve themselves as a White race. As you could never otherwise have realised, you realise today their task to make South Africa a White man's land is ten times more your task."

Africans' claims

It will of course come as no surprise that the Native Convention which, some decades earlier, met in Bloemfontein in 1909 passed a Resolution which expressed: 

"Its strong and emphatic protest against the admission of a 'colour bar' in the Union Constitution as being a real vital basic wrong and injustice, and respectfully pleads that a clause be inserted in the 'Charter' providing that all persons within the union shall be entitled to full and equal rights and privileges subject only to the conditions and limitations established by law and applicable to all citizens without distinction of class, colour or creed... This Convention seriously deprecates the absence, in the said Draft Act, of the principle of equal rights for all races in the South African Colonies..."

This remained the fundamental demand of the South African liberation movement throughout the 20th century.

We will therefore find it in successive documents of this Movement such as:

• The 1918 Constitution of the South African Native National Congress (ANC);

• The 1943 Africans' Claims;

• The 1949 Programme of Action;

• The 1955 freedom Charter;

• The 1958 Constitution of the ANC;

• The 1991 ANC Constitutional Principles; and

• The 1992 ANC Ready to Govern document.

The strategic outlook and objective stated by the SA Native Convention in 1909 finally finds expression in the 1993 Interim Constitution, and of course also the Constitution of the Republic of South Africa, No. 108 of 1996.

On 21 August 1989, the OAU Ad-hoc Committee on Southern Africa, meeting in Harare, Zimbabwe, adopted the famous "Harare Declaration on the Question of South Africa".

This important African Continental Committee said, among others:

"We believe that a conjuncture of circumstances exists which, if there is a demonstrable readiness on the part of the Pretoria regime to engage in negotiations genuinely and seriously, could create the possibility to end apartheid through negotiations. Such an eventuality would be an expression of the long-standing preference of the people of South Africa to arrive at a political settlement. 

"We would therefore encourage the people of South Africa, as part of their overall struggle, to get together to negotiate an end to the apartheid system and agree on all the measures that are necessary to transform their country into a non-racial democracy. We support the position held by the majority of the people of South Africa that these objectives and not the amendment or reform of the apartheid system, should be the aims of the negotiations."

Negotiating the future

The apartheid regime showed that "demonstrable readiness to engage in negotiations genuinely and seriously" in February 1990, a mere six months after the adoption of the Harare Declaration.

As is well known, it did this essentially by unbanning the ANC and other organisations, releasing Nelson Mandela, following the release of other political prisoners, and agreeing to enter into negotiations to end the apartheid system.

As the Harare Declaration had said, all this gave an opportunity to the liberation movement to exercise its old and abiding preference for a political settlement by preparing for and engaging in negotiations principally with the apartheid regime. 

In March 1995, the ANC issued a fortnightly information bulletin "ANC - Constitution News, No. 1". Among others, the Bulletin said:

"The ANC's National Constitutional Conference will be held at Nasrec in Johannesburg from 31 March to 2 April 1995. The conference will be the culmination of a process of country-wide consultation and discussion on the ANC's draft constitutional policy, and will provide the ANC members of the Constitutional Assembly with a clear mandate."

It also said:

"Through a community liaison strategy, the Constitutional Assembly administration hopes to receive input from the population at a number of levels - through, among others, written submissions, community meetings and sectoral conferences. This will be accompanied by a media campaign, which includes the Constitutional Assembly publication, Constitution Talk.

"The ANC needs to be active in this process, as it provides an opportunity to have an even greater impact on the process of constitution-making."

These reports by the ANC Bulletin draw attention to some important elements with regard to the constitution-making process.

One of these is that the ANC had taken steps to draw into this process as many of its members and supporters. It therefore took the deliberate decision that the constitution-making should not be confined to its leadership, its elite, but would involve the millions immediately grouped within and around the movement.

Another important element was that the political parties elected to the Constitutional Assembly (CA) also took the related decision to involve as many of the millions of our people as possible in the said process. These parties could easily have claimed, correctly, that they already had the mandate to negotiate the Constitution without reference to the electorate. Fortunately, they did not do so.

The third significant element is that the ANC decided to use its machinery and popularity to help mobilise the people to respond positively to the invitation by the CA for popular involvement in its work. It is logical to assume that the other Parties would have done the same.

Popular participation

In this regard, we must remember that thanks to the electoral system of proportional representation, the CA was made up of seven (7) parties. 

The biggest, the ANC, had 62.9% of the votes. The smallest, the ACDP, had 0.45% of the national vote. It is therefore obvious that the campaign to encourage popular participation in the CA process, would reach both the biggest political constituency in the country and also the smallest.

In this context, in his address when the Constitution was adopted, President Mandela said:

"Present today in the public gallery are representatives of almost every organised sector of civil society which made their inputs into the process: the legal fraternity, women, local communities, traditional structures, and leaders of sectors dealing with business, labour, land issues, the media, arts and culture, youth, the disabled, children's rights and many more.

"Beyond those present are the millions who wrote letters and who took part in public forums: from the policeman in a charge office in the furthest corner of the Northern Province, to prisoners getting together to discuss clauses, and to residents of Peddie in the Eastern Cape who continued with their meeting in pouring rain to debate the role of traditional leaders..."

We can therefore truly say that the Constitution adopted in 1996 was and is not an elite contract. Rather it is a solemn compact among the millions of our people, black and white, to do their best to produce the new South Africa spelt out in this historic document.

It seeks to establish a social order and governance system that is the direct opposite of what the South Africa Act, 1909 and D.F. Malan and his National Party sought to impose on our country, building on and consolidating three centuries of colonial conquest, oppression and exploitation.

The Constitution contains this seminal statement of the greatest importance for the future of our country:

"This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled."

It is appropriate in the context of understanding the weight of the Constitution as the people's compact we have mentioned, to recall the ancient Latin saying:

"Vox populi, vox dei: The voice of the people is the voice of God."

Precisely because of the epochal, revolutionary importance of the project to give birth to a radically new social order and governance system, the ANC paid the closest attention to the details of all sections of the Constitution. 

This means that both the membership and close supporters of the ANC as well as the broad masses of our people were familiar with and supportive of such proposals of the Movement which were incorporated in the Constitution.

Some detailed proposals

To illustrate what I mean in this regard, I will briefly discuss just two among the many matters which constitute the Constitution. These are the issues of:

• The constitutional democracy; and,

• Local government.

The 1992 document "Ready to Govern: ANC policy guidelines for a democratic South Africa" says:

"We are proud of our role in pioneering democracy and constitutionalism in our land, especially through the Freedom Charter... After so many decades of struggle and sacrifice, we must achieve a constitution that guarantees that oppression, discrimination, inequality and division will never stalk our land again."

In 1995, the ANC made a preliminary submission to the CA relating to the matters we have just cited, as mentioned in "Ready to Govern". Among others the submission said:

"Both the Constitution and the Bill of Rights must remain supreme... The South African state should have the character of being a democratic constitutional state expressing the balance between democratism and constitutionalism...

"The supremacy of the constitution should not be a system against the state, but it should be a system for the democratic state, to guard against the state degenerating into anarchy, arbitrariness and illegality, without a framework of rules. Such a state would undermine democracy and democratic practices...

"The judicial determination of the constitutionality of legislation should be restricted to establish the formal and material legal compatibility of national or provincial legislation with the Constitution, or the compatibility of provincial legislation with other national legislation, and not the political desirability of the same."

This confirms the detailed attention which the ANC paid to the task of constitution-making, which included engaging its members, supporters and general public on the details concerned. This emphasises the need for all of us and future generations to understand that the people's compact was not just confined to broad principles, but included some detail of the society which would be born of the Constitution.

To prepare for this outcome, the ANC submitted various proposals to the CA on the issue of Popular Participation in the constitution-making process.

Among others, it suggested that:

The CA communication strategy should be based on ensuring:

"Knowledge of the issues by the public, how they impact upon the daily lives of people and how to translate views and feelings into submissions"; and therefore that the CA Theme Committees would have to:

"Prepare a simple documentation which will explain issues and pose questions."

The ANC also made Preliminary Submissions to the CA on the issue of Local Government. Once again this shows the detailed attention the movement had paid to this matter.

The document, "Ready to Govern", reflected on the issue of Local Government.

Among other things it said that: Local Government would "play a crucial role in building democracy in a future South Africa. Local government will bring government closer to the people and actively involve them in decision-making and planning processes which affect them"; and, "play a key role in development and in the equitable redistribution and re-allocation of local authority services. It will address as a priority the disparities in our cities, towns and villages which have resulted from the policies of apartheid...

"Democratic local government means more than just having the right to vote in a local election. It also includes facilitating the creation of a strong, independent civil society, a high degree of accountability, transparency and the right to participate in decision-making processes which affect communities between elections...

"Local government must be developmental in character."

It is therefore not surprising that the preliminary submission of the ANC to the CA on Local Government reflects these positions. Because there had been further discussion since the adoption of "Ready to Govern", these submissions included additional elements such as the statements that:

"This is the level of government charged with the actual implementation of the RDP to ensure the transformation of society. Hence, the task of local government is to ensure that all residents have equal access, free of any form of discrimination to basic services. Local government shall contribute actively towards the redistribution of resources on the basis of race, class and gender...

"Local government shall be responsible for access by all persons in its area of jurisdiction to basic services like water, transportation facilities, electricity, primary health care, education, housing and security, where it is financially and physically practicable...

"The electoral system for local government must be democratic. It may include both proportional representation as well as ward representation, and shall be regulated by national legislation and/or regulations."

Once again, we can see how these proposals on Local Government, like those on Constitutional Democracy, became part of the people's compact expressed in the Constitution of the Republic of South Africa, No. 108 of 1996.

Some naysayers

Regrettably, as we discuss the specific matters of Constitutional Democracy and Local Government, recently, some claiming to belong to the very same ANC which was the principal author of this 1996 Constitution, have sought to challenge precisely these pillars of the Constitution, among others.

Some of these have made bold to assert that the country is in crisis because the ANC, has come to represent "neo-colonialism and neo-liberalism". They argue that the policy and practice of the supremacy of the Constitution and constitutional democracy in our country is exactly an expression of that neo-colonialism and neo-liberalism.

They set in opposition to each other the elected Parliament on one side, and the Constitution, and therefore the Constitutional Court, on the other. They argue that the people give sovereign power to the elected Legislature and that giving power to the Constitutional Court to review decisions of the Legislature is illegitimately to subvert the will of the people.

This is extended to the whole judicial system, to the extent that the Courts have the power to adjudicate even decisions of individual political parties, including the ANC as the governing party.

READ | Ronald Lamola: 25 years of constitutional democracy: We must interrogate those who attack the judiciary

A specific proposal from some of these naysayers argues for a judicial system made up of "Magistrates Courts, High Courts, an Appeal Court and a Review Court". It does not say what the mandate of such a "Review Court" would be. The important point, however, is that this suggestion means the abolition of the Constitutional Court.

In reality, what is suggested here is the abandonment of the principle that the Constitution is the supreme law of the Republic, thus the restoration of the unfettered authority of Parliament and therefore the complete freedom of any elected majority party to set such governance rules as it wishes.

As our readers know, these proposals seek to overturn very important and defining decisions taken by the CA elected in 1994. 

Some texts we have cited above show that the ANC seriously considered the matter of the tension that would arise between an elected Legislature and an appointed Constitutional Court and deliberately opted for a constitutional democracy. This was the position consciously adopted by the CA.

To repeat, the ANC said:

"The supremacy of the constitution should not be a system against the state, but it should be a system for the democratic state, to guard against the state degenerating into anarchy, arbitrariness and illegality, without a framework of rules. Such a state would undermine democracy and democratic practices."

The decision to have a constitutional democracy was exactly because the ANC and the rest of the CA deliberately thought that it would be best that the elected Legislature operated within a "framework of rules". The naysayers seek to remove that "framework".

Of course the CA had the sovereign authority which these naysayers speak of. It used that authority to agree on a Constitution which prescribed the "framework of rules" within which it, as the Legislature, would operate. It and the successive Legislatures have operated within that "framework" for more than two decades with no negative impact on our country's democratic system.

I have also mentioned that the naysayers have also supported the suggestion for what is called the "synchronisation of the national, provincial and local government elections". In this regard they join the ANC itself, which is mimicking a call made elsewhere.

After a June 2020 meeting of its National Executive Committee (NEC), the ANC issued a Statement which said, among others:

"The NEC supports the initiative by Officials and the NWC, to engage in the development of proposals on a synchronised national, provincial and local government elections to enable better coordination and implementation of policies across spheres of government."

Earlier we explained some of the proposals the ANC made relating to Local Government. These tell the story that the ANC gave Local Government a particular place within our system of government. One of the important particularities in this regard is that it is especially in this sphere of government that the ANC saw the fullest expression of the objective stated in the Freedom Charter - The People shall Govern.

It is obvious that any "synchronisation" of the local government elections, especially with the national, would drown out the former. This would finally collapse the excellent and special vision for local government which the ANC had, and which in large measure, the CA had accepted.

We can therefore understand why the naysayers would support the suggested "synchronisation" of the elections. It is a reactionary proposal.

The argument that a constitutional democracy is a threat to democracy itself and a subversion of the will of the people makes no sense and is not supported by any evidence, both in our country and elsewhere in the world.

It is not advanced because of a love for democracy and respect for the will of the people. 

It is in fact part of a counter-revolutionary offensive which aims first to overthrow the ANC as a governing party, install another power in its place which would proceed to manage our country as it wishes, without the "framework of rules" provided by our Constitution.

Indeed, some of the naysayers we have cited have not hidden their intentions. In this context, they have spoken of such measures as forming some Task Team to run the ANC, replace the current ANC NEC, "rebuilding the (ANC) security structures", "rescheduling" the local government elections, "ensuring that Parliament re-asserts its sovereignty", expelling all "foreign nationals" within 90 days, etc.

It is also important to note that such demands are not restricted in part or in whole to the naysayers we have cited, but also to other people and formations in our country, which therefore share counter-revolutionary objectives.

Conclusion

From its earliest beginnings in the 19th century, our country's liberation movement had as one of its central tasks to ensure that our country has a framework, binding on all, to establish a social order and governance system which would grant equal rights to all South Africans, black and white.

This meant that by whatever means necessary and possible, the settler colonialists and the indigenous majority, the oppressor and the oppressed, black and white had to reach a moment when they could sit together and agree on this framework to establish a social order and governance system which would grant equal rights to all South Africans.

The oppressed through their liberation movement always entertained the hope that a peaceful way would be found to arrive at this historic moment. However, the oppressor always thought that it would and could dispose of sufficient brute strength to defeat and suppress the liberation movement.

In the end, the multi-faceted and protracted liberation struggle and the changing balance of forces, principally in our region and the rest of Africa, left the apartheid regime with no choice but to enter into negotiations to end the many centuries of white minority colonial and apartheid domination.

READ | Serjeant at the Bar: The ANC needs to show that it is committed to the Constitution

The Constitution whose 25th Anniversary we celebrate this year, is one of the outstanding victories of the multi-faceted and protracted liberation struggle we have mentioned.

It is in itself a monumental tribute to the masses of our people who not only carried our country to its freedom, but also provided the constitutional framework on whose basis we should achieve the reconstruction and development of our country, giving birth to a new South Africa that truly belongs to all who live in it, black and white, united in their diversity.

We must never allow that anything diminishes the importance and unquestioned excellence of such a noble product of the immense sacrifices made by millions of our people, as the living Constitution of the Republic of South Africa, No. 108 of 1996.

Of that Constitution this we can say: Vox populi, vox dei!

- Thabo Mbeki is the former president of South Africa.

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