By Nomfundo Manyathi-Jele

The Department of Justice and Constitutional Development in partnership with the Foundation for Human Rights held a two-day national colloquium on constitutional education and awareness. The colloquium was held at the St George Hotel in Kempton Park at the end of July.

The director-general of the Justice Department, Nonkululeko Sindane gave the welcome address and the purpose of the colloquium. She said that while there have been a number of initiatives to promote awareness and knowledge of the Constitution, studies reveal that many who live in the country, in particular the marginalised groups, are not aware or have little knowledge of the Constitution and Bill of Rights, adding that they have limited or no access to the Constitution.

Ms Sindane said the aim of the colloquium was to –

• discuss how best to coordinate public awareness of the Constitution and human rights education;
• identify and coordinate existing projects relating to constitutional literacy and draw from experiences to inform future projects;
• build greater awareness and knowledge of the Constitution and human rights; and
• identify solutions to the problem of lack of access to the Constitution.

The keynote address was given by Deputy Justice Minister, John Jeffery, who said that government had put particular emphasis on improving constitutional awareness and on promoting constitutionalism and social justice so as to contribute to social cohesion.

Deputy Minister Jeffery said the Justice Department has allocated R 73 million in the 2015/16 financial year to this ‘crucial’ focus area to ensure awareness of the relevance of constitutional democracy and the rights and obligations of persons in this regard.

According to Deputy Minister Jeffery, the Justice Department is entrusted with promoting constitutional development on behalf of the state. ‘The Department’s mandate, derived from the Constitution, is twofold.  On the one hand, it seeks to provide a framework for the effective and efficient administration of justice and to ensure that all people in South Africa are and feel safe … the Department promotes constitutional development through the development and implementation of legislation and programmes that advance and sustain constitutionalism and the rule of law and support nation building and social cohesion,’ he said.

Deputy Minister Jeffery said constitutional awareness entails actively informing people of their rights. He added that making justice accessible and raising constitutional awareness means shaping programmes in such a way that they have the most effect. ‘The reality is that many people live in rural areas and not all are literate. Even for those who are literate the Constitution is not always that easy to understand. One has to therefore tailor-make constitutional awareness programmes in a way that reaches people,’ he said.

The role of the judiciary in a constitutional democracy

Judge President of the Gauteng Division of the High Court, Dunstan Mlambo, speaking on the role of the judiciary in a constitutional democracy at a national colloquium on constitutional education and awareness held in Kempton Park in July.

Judge President of the Gauteng Division of the High Court, Dunstan Mlambo, spoke on the role of the judiciary in a constitutional democracy. He said that he believes that the interaction of judges with civil society is imperative for deepening society’s understanding of what the judiciary is meant to be doing.

Judge President Mlambo said there is a changed context to the one South

Africa (SA) experienced in the immediate post-1994 era, adding that that was the honeymoon period. ‘We wanted to show everyone that we had devised a new constitutional order and we sought to ensure that we would uphold the Constitution and Bill of Rights … the establishment of the Constitutional Court as the apex court was one of these examples, as well as ensuring a transparent appointment process. Another aspect we worked hard on in the immediate post-1994 era was to assert the right to life principle. This was expressed in the abolishment of the death penalty,’ he said.

Judge President Mlambo said the honeymoon phase, however, soon evaporated. He said violent crime became the order of the day, at times threating the international investment in SA. Courts began to challenge the abolishment of the death penalty, which went hand in hand in questioning the relevance of the Constitution regarding a perceived lenient treatment of violent criminals.

Judge President Mlambo said it is human nature to find a scape goat when there are problems and added that it was important for the judiciary to seize the opportunity to embark on constitutional education programmes by educating people about the right to life.

According to Judge President Mlambo, there is a perception that the country has two justice systems, one for the rich and one for the poor. ‘As a judiciary I think we need to do more so that we get to understand what drives this perception and what we can do as a judiciary to ensure that we stop this presumption and assist in embedding the understanding of the Constitution. He added that the judiciary, on its own, was disadvantaged in running constitutional literacy programmes adding that the work lies in the larger segment of society, which is better accessible to others.

Judge President Mlambo said that at most of the engagements that he is invited to, it is all the who’s who’s that attend the functions adding that the ordinary person in the streets who would probably benefit most at the engagements are never invited. ‘If we can engage on those grassroot levels, I am certain it will go a long way in changing the mindset of the justice system,’ he said.

Judge President Mlambo said the Constitution clearly provides that the courts are independent and are only accountable to that Constitution. He added that no person or organ of state may interfere with the function of the court and that organs of state must assist and protect the courts to ensure their independence, impartiality, dignity and accessibility. ‘The separation of powers means that the judiciary functions independently of the other two arms of government but more importantly. Our task as the judiciary is to apply the Constitution, this is neither simple nor easy but it is a constitutionally mandated duty,’ he said.

Constitutional education from universities to communities

Professor of human rights law at the University of Pretoria, Christof Heyns, spoke on Constitutional education from universities to communities at a constitutional education and awareness colloquium in July.

Professor of human rights law at the University of Pretoria, Christof Heyns, spoke on constitutional education from universities to communities. Professor Heyns said there were two methods of learning about the Constitution today involving participation. The first was through the South African National Schools Moot Court Competition and the second was through community service by students.

Professor Heyns said moots have become an extremely popular and effective form of human rights education worldwide – and South Africans have to a large extent taken the lead on that front. ‘In 1992, a number of South Africans started what is now the All-African Human Rights Moot Court Competition. This competition is in its 23rd year and almost all African universities participate in the competition,’ he said.

Professor Heyns said there are approximately ‘one million students in the universities of South Africa. Although many of them face problems, they are a relatively privileged part of our community. In my view we should as a country – and as universities – follow a policy of “no degree without community service”. In one way or another, all students – including law students – should perform some form of community service. We know medical and engineering and some other disciplines already do this, but we need to expand this and every student must get the opportunity before he or she graduates. We need to work out the details – who knows, law students can for example serve as coaches for the schools moot – but the principle should be clear. Moreover, an organisation must be established to give students the opportunity to go to less-resourced areas during their holidays to renovate schools and clinics.’

Presenting on the Justice Department’s constitutional and human rights education programme, deputy chief law advisor at the Department, Ooshara Sewpaul said 60 000 copies of the Constitution (in English) were printed and distributed to national departments; municipalities; universities and schools; Parliament; resource centers; churches etcetera, adding that 2 000 copies of the Constitution, at R 30 per copy, were printed in each of the official languages and distributed on request.

Ms Sewpaul added that 580 000 copies of the slimline Constitution (in English) were printed and distributed to all Grade 12 learners in public schools through the Department of Basic Education and that an additional print run of 50 000 copies was produced to meet requests and were circulated at departmental events.

Ms Sewpaul noted that 1 000 Braille copies of the Constitution costing approximately R 1 300 per copy were also produced and distributed through departmental and community events. These copies will also soon be distributed to, among others, libraries at universities, municipalities, and the community and to institutions for the blind.

A right is of no assistance to its bearer, if the bearer is ignorant of such a right

Speaking on behalf of Legal Aid South Africa, its chief legal executive, Patrick Hundermark, said that it is an accepted principle that a right is of no assistance to its bearer, if the bearer is ignorant of such a right. ‘It is therefore imperative for any organisation entrusted with the protection of constitutional rights, to ensure that the public is aware of these rights,’ he said.

Mr Hundermark said Legal Aid South Africa has as one of its strategies, the implementation of community education and outreach programs to educate communities about their rights and responsibilities. He added that in the nature of their work, the creation of awareness of constitutional rights permeates every piece of work that they do for their clients.

Mr Hundermark then outlined part of their program to educate communities about their rights and responsibilities –

Criminal legal aid delivery

• Prison clinics – these are clinics conducted at correctional centres by Legal Aid South Africa (Legal Aid SA) to educate both sentenced inmates and remand detainees about their rights and to provide assistance to those who are not legally represented.
• Visits to secure care facilities – these visits target children in conflict with the law so that Legal Aid SA can educate them about their rights and provide legal representation to those that may not be legally represented.

Civil legal aid delivery

• Community Outreach programmes – Legal Aid SA practitioner’s regularly visit community structures such as civic bodies, as a way of gaining access to a wider audience for human rights education.
• Civil legal aid clinics – these are events or lectures conducted by Legal Aid SA’s civil units to highlight specific human rights issues.
• Self-help modules – Legal Aid SA has a large body of self-help documentation available on its website as a further resource available to the public.
• Mr Hundermark said there were also programmes focused on children. These are:
• Fair play events – every justice centre has to partner with a local school for purposes of conducting a fair play event. These events are aimed at educating children about the value of respecting the rights of others, and being fair in one’s dealings with your fellow citizens.
• Posters – Legal Aid SA’s communications department, in conjunction with justice centres ensures that posters dealing specifically with children’s rights are placed in strategic places.
• Radio and television broadcasts – Legal Aid SA’s practitioners regularly participate in radio and television discussions dealing with human rights. In some areas, radio stations have allocated permanent slots where listeners can phone in for advice with issues affecting their rights.
• Some of the recommendations from the audience included –
• Translating the slimline Constitution into all languages.
• Making 2016 the ‘Year of the Constitution’ as the 20th year of the Constitution is celebrated.
• The adoption of ‘Constitution Week’.
• Looking at whether an audio version of the Constitution is needed.

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

This article was first published in De Rebus in 2015 (Sep) DR 6.