Department of Justice reflects on 25 years of the Constitution

May 2nd, 2023

The Department of Justice and Constitutional Development held a National Conference on the Constitution titled ‘Reflections and the Road Ahead’ from 22 to 24 March 2023. In his opening address the Minister of Justice and Correctional Service, Ronald Lamola, said that as guided by the Cabinet last year, the Department of Justice committed to holding the conference on the Constitution, to take stock of the road traversed in the last 25 years and reflect on the road ahead. He added that a reflection on the past 25 years of the Constitution would not be complete without an acknowledgement and recognition of the injustice of the past. ‘We come from a shameful history of the brutal system of colonialism and Apartheid,’ Mr Lamola said.

Minister of Justice and Correctional Services, Ronald Lamola gave the opening address at the National Conference of the Constitution that was hosted by his office.

Mr Lamola pointed out that among the key documents produced during the fight for the liberation of the country, was the Freedom Charter set out to define social goals for the nation, and later set the firm foundation for the Constitution as it is known today. He added that the Preamble to the Constitution makes a clarion call for all, as a nation to among others, heal the divisions of the past and establish a democratic society based on democratic values, social justice, and fundamental human rights.

Mr Lamola said the collective efforts made over the year in healing the divisions of the past, have been aimed towards the attainment of a democratic state guided by the values of human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism and none-sexism, supremacy of the constitution and the rule of law, universal adult suffrage, a national common voters roll, regular elections and democratic government to ensure accountability, responsiveness and openness.

President Cyril Ramaphosa gave the keynote address on day one of the National Conference on the Constitution that was held in Johannesburg on 22 to 24 March.

President Cyril Ramaphosa said it was about time South Africa (SA) reflected on the Constitutional efficacy and whether it has served the aspiration of South African people. He said that the Constitution is the product of a long struggle for freedom, justice, equality, dignity, and a better life for all living in SA. He added that it is indeed a product of a struggle against colonialism, Apartheid, oppression, subjugation, and disposition. He pointed out that in the first certification case of the new Constitution, the Constitutional Court said: ‘South Africa’s past has been aptly described as that of “a deeply divided society characterised by strife, conflict, untold suffering and injustice,” which “generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge”’.

President Ramaphosa said that the Constitution is more than the supreme law of the land but is also a rejection of the political socio-economic system that came before it. He added that the Constitution –

that has been in operation for 25 years – constitutes a social compact on how South Africans should relate to each other as people, how South Africans should relate to other nation’s sovereign states, how SA should be governed, and also how SA should deal with its resources.

President Ramaphosa said the Constitution places on all institutions of the state a responsibility to take measures that are necessary to build a society in all respect different to the society that came before it. ‘It places emphasis on the work that must be done to heal the divisions of the past in circumstances where these divisions are manifested in the severe inequality of the present. It calls for social justice in circumstances where a large portion of South Africans continue to live in poverty and where, despite substantial progress, many are still unable to access things such as land, housing, water, food, healthcare, and education,’ President Ramaphosa said.

President Ramaphosa added that the Constitution correctly recognises that to advance this transformational promise, all spheres of government and all organs of state are required to provide effective transparent accountable, as well as coherent government. He added that the judiciary by upholding the rule of law and protecting human rights, has played and continues to play a pivotal role in SA. He pointed out that enforcement of law through the judiciary is crucial in ensuring the sustainability and viability of the South African democracy. Furthermore, laws bond individuals and society together, he said. President Ramaphosa added that without the rule of law, SA is vulnerable to chaos, violence, mayhem, anarchy, rampant corruption, violation of human rights, inequality and the collapse of state institutions.

In her presentation, legal practitioner and University of Venda Chancellor, Mojanku Gumbi, said that she was glad that this dialogue was happening as it gives one time to reflect on issues, such as land, a high unemployment rate, and a health system that is about to collapse. She said that this is not a society that was envisaged by those who fought for the struggle. She pointed out that society needs to ask if regular elections will resolve these issues and if it can be resolved by the South African Constitution? She added that President Ramaphosa said that the Constitution is the foundation for a new society.

Ms Gumbi said that the Constitution contains the ideals of what SA wants to aspire to. She, however, added one cannot talk about equality before the law. She pointed out that equality before the law is a myth. She said the law responds to people with money. She said that if equality before the law was to be spoken about, then perhaps SA should have built a strong public defender. However, she said that if one looks at what the Office of the State Attorney does and people who ask for assistance, she described it as a shame. She pointed out that there are certain steps that should have been taken before one can talk about equality before the law.

Professor Barney Pityana, said that SA is in a broken state and that SA no longer realises what the Constitution promises. He said that the Constitution was very clear in its affirmation and the responsibilities it puts on the state. He pointed out that in the ch 2 of the Bill of Rights, it says that ‘the state must respect, protect, promote and fulfil the rights in the Bill of rights.’ He said his sense is that there is no possibility of the realisation of the rights in the Bill of Rights and even of our constitutionalism, without a state that is proactive and engaged enough in informing and shaping the nature of our society. He pointed out that one senses that government in our country is weak, the police are weak, and are unable to enforce law and order. That the rule of law is just not able to bring about the obedience and faith in the system.

Prof Pityana pointed out that for him that is not an affirmation of a rights based state. It is the affirmation of a state that is unable to enforce law, whatever the reason behind it tells the people of SA that the law is unable to be enforced in a manner that is clear. He added that the result is that some people are in a mode of just helping themselves, that if you can get away with it, ‘help yourself’, therefore, there is a move from cynicism from the Constitution to actually undermining the rule of law, because there is no other way people think they have. Prof Pityana said that there is no alternative, but SA needs to re-imagine the democratic constitutional state. He added that SA has begun to do so by revising the Electoral Act 73 of 1998. He said not enough has been done, but that becomes the important prerogative of how to test the will of the people.

Legal practitioner and University of Fort Hare Chancellor, Dumisa Ntsebeza SC at the National Conference on the Constitution.

During the panel discussion on ‘Transforming and building an independent and resilient judiciary,’ legal practitioner and University of Fort Hare Chancellor, Dumisa Ntsebeza SC, added that SA should be very careful when dealing with transformation of the judiciary. He added that they must remember that of the three spheres of government, the judiciary still has the primary and the ultimate obligation to deal with interpreting the law. Therefore, there is an amount of care that the Judicial Service Commission should put into who they entrust those foundational values of the Constitution. He spoke about the politicisation of the judiciary and pointed out that judges should be independent in order to discharge their responsibilities.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

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