Our constitution reflects
the values of the people
During the run-up to the 1999 General Elections, some inside and outside
our country tried the frighten the electorate against voting for the ANC
by telling the outright untruth that we sought a two-thirds majority to enable
us to change the Constitution. Some have resorted to the same tactic this
time round, once more trying to win votes by telling lies.
The ANC led the struggle for democracy in our country. Our members and supporters
paid a heavy price to bring about this outcome. We are the principal architects
of our country's constitutional order, which guarantees our people democracy
and human rights.
We based our contribution to the constitution-making process on long established
positions of our movement, some of them going back a number of decades. These
reflected both our experience of oppression and the lessons we drew from
struggles for liberation in other parts of the world.
Consequently, the ANC will never treat the issue of constitution making,
including amendments of the present Constitution, as a matter that should
fall victim to short-term political considerations. Precisely because we
played a central and decisive role in drafting and adopting this Constitution,
we have an obligation to be its principal defender.
The 48th National Conference of the ANC held in 1991
adopted a Declaration that visualised a transition period "during which the masses of the
people will take an active part in the formulation of the basic law of the
land". The Declaration confirmed our commitment to the convening of "a
Constituent Assembly elected on the basis of one-person, one-vote on a non-racial
voters ' role".
The later document 'Ready to Govern' adopted at the
May 1992 National Conference repeated the positions decided at the 48th
National Conference. Discussing
the issue of "a democratic constitution for South Africa" it said: "Sovereignty
vests in the people of South Africa. Their will shall be expressed by their
democratically elected representatives in periodic free and fair elections.
These elected representatives will adopt a constitution which shall be the
highest law of the land guaranteeing their basic rights."
During the late 1980s, as we prepared for the eventuality of a negotiated
resolution of the conflict then afflicting our country, we put forward the
proposal for the convening of a Constituent Assembly to draft and adopt the
new Constitution. This was because we held firmly to the view that this fundamental
law should derive from our people as a whole, the principal repository of
our sovereignty.
As we all know, our first democratic constitution adopted in 1993, was called
an Interim Constitution. This was not because there was anything wrong or
anti-democratic in any of its provisions. It was because it was drafted by
a non-elected body, the negotiating parties at the multi-party talks, and
adopted by the apartheid parliament.
For this reason, the national parliament elected in 1994 had to serve as
the Constituent/Constitutional Assembly to ensure that we fulfilled the requirement
that our fundamental law should derive from the people. To facilitate the
direct involvement of the masses of our people in the constitution-making
process, the Constitutional Assembly did everything possible to encourage
the people to submit proposals to the constitution-makers.
With regard to the issue of public participation,
Hassen Ebrahim, Executive Director of the Constitutional Assembly, has
written in his book, 'The Soul
of a Nation', that "The challenge was to find ways to enter into effective
dialogue and consultation with a population of more than 40 million people".
Among other things, he says that during the subsequent
sectoral hearings, "596
organisations were consulted", 1,7 million submissions were received,
and "just over 11,000 were substantive". Seven hundred and seventeen
organisations and 20,549 people attended participatory public meetings, which
were attended by more than 200 Members of the Constitutional Assembly.
Ebrahim writes: "These (public meetings) also
served to highlight the point that constitutions are about basic values
affecting society and should
be understood by even the least educated. It was a humbling experience to
realise that constitutional debates and issues are not only the domain of
the intellectual elite, but that they belong to everyone."
We can therefore say confidently that our Constitution truly reflects the
sovereign will of our people. This includes the value system, the basic values
affecting society mentioned by Ebrahim, according to which our citizens define
themselves as human beings, as well as determine what their country should
be, beyond the more direct issue of the institutions provided for in the
Constitution.
These considerations make it obligatory that the
matter of any major or fundamental alteration of the Constitution should
be approached with the
greatest caution and circumspection. Such changes would also require that
we continue to respect the concept and practice that "sovereignty vests
in the people of South Africa".
As was the case in 1999, the ANC has no intention to initiate changes to
our Constitution, after the April elections. None of the policy and programmatic
initiatives for the next five years contained in our Election Manifesto necessitates
any constitutional amendments. Indeed, had we visualised any such amendment,
we would not have hesitated to state this openly in the Manifesto.
Contrary to our own positions, a number of the political parties that have
proclaimed their main electoral objective as the weakening of the ANC, are
interested that our Constitution should be amended. In all instances, the
changes they desire would be fundamentally at variance with the value system
that informs our Constitution.
The ACDP is one of these parties. In its Manifesto,
this Party says that it "believes in a constitutional state that promotes Christian moral
values and as such rejects the concept of South Africa as a secular state".
Thus the ACDP wants to take the country backwards towards the period of
the apartheid years, when the then ruling National Party imposed Christianity
as, to all intents and purposes, the state religion. This would reintroduce
religious bigotry into our politics, entrench inequality in our society,
and block the advance towards national unity and reconciliation in a diverse
society, thus condemning all of us to increased tension and conflict.
As we all worked on our Constitution in the manner we have described, we
were fully aware of the damage caused to all our people by the injection
of Christian fundamentalism into our country's politics. The apartheid system
had justified the oppression of the majority through a crude distortion and
vulgarisation of the Holy Scriptures.
People who were indoctrinated into believing that they were fighting the
anti-Christ were responsible for some of the worst crimes against liberation
fighters. The same fanaticism had resulted in those exercising power despising
and discriminating against other faiths, including African religions and
beliefs, Hinduism, Islam and Judaism.
In addition, we knew of the abuse of Christianity by slave owners in the
southern United States, during the period of slavery. We had seen the people
of Northern Ireland at one another's throats, partly because of religious
differences. We had also seen the former Yugoslavia tear itself apart in
an orgy of bloodletting, in part driven by the refusal to accept a multi-faith
society.
Together with the masses of our people, we took the firm decision that the
new South Africa must be built on the principle that God created all human
beings in His image. We therefore rejected the view that there were some
people who were superior to others, that one or more faiths was or were superior
to others, and that religious belief should be used to define our democratic
state.
We took the view that all our people should be free to adopt any faith of
their choice and that it would be fundamentally contrary to the very practice
of democracy for the democratic state to prefer one faith against others.
Accordingly, the new multi-ethnic, multi-cultural and multi-faith non-racial
and non-sexist South Africa had to be a secular state.
But the ACDP makes bold to say that it wants a "state that promotes
Christian moral values and as such rejects the concept of South Africa as
a secular state". To bring this about would require a radical rewriting
of our Constitution, fundamentally at variance with the basic values affecting
society that inform our Constitution.
The same holds true for another demand of the ACDP,
that "in the case
of certain offences, such as pre-meditated murder, the courts will be given
the discretion to impose capital punishment". Interestingly, in this
regard the ACDP has decided that the Commandment "Thou shall not kill" is
irrelevant. The ACDP is joined in this by other parties such as the IFP,
the FF Plus, and the leaders of the DA.
Violence has characterised our country over the centuries. The process of
colonisation claimed many lives. Many lives were lost as successive white
minority regimes did everything to perpetuate unjust rule. By definition,
the racist colonial and apartheid system constituted a sustained violent
assault against the masses of our people, claiming many lives through hunger
and deprivation.
At the same time, by making millions of families disfunctional,
destroying self-esteem among many of our people, and driving many into a
situation of
hopelessness, it encouraged the growth of crime, including murder and other
crimes of violence against the person.
Faced with all these realities, we decided that the time had come that we
break what had become an entrenched social reality, of unacceptability high
levels of violence among our people. One of the decisions we took was that
the state itself must respect the Commandment - thou shall not kill! Accordingly,
it must set an example for all our people that the taking of human life is
impermissible.
Our Bill of Rights therefore includes the provision
that "Everyone
has the right to life." This is further supported by the requirement
that "Everyone has the right to freedom and security of the person,
which includes the right.not to be treated or punished in a cruel, inhuman
or degrading way."
Because of these provisions, our Constitutional Court ruled that the death
penalty would be in violation of the Bill of Rights. It would be in violation
of the value system according to which we seek to educate all our people
to value human life, while using all other available options to punish those
who threaten or take the life of another.
The ACDP wants yet another constitutional amendment.
In its Manifesto it says "The sexual orientation clause in the National Constitution has
resulted in the promotion of unacceptable alternative lifestyles such as
homosexuality".
It has therefore appropriated to itself the right
to determine for each South African what constitutes an "acceptable lifestyle".
This seeks to take us back to the time when the apartheid police had a
responsibility
to find and charge those who had sexual relations across the colour-line.
Our Bill of Rights also says "Everyone has the right to privacy.".
Necessarily, the ACDP wants this amended as well. But the masses of our people
have not forgotten what it meant to be denied the right to privacy, leaving
them completely exposed to any intrusion or invasion decided upon by the
apartheid state.
The value system the new South Africa upholds requires that the state must
be prohibited from behaviour that undermines human dignity or unreasonably
limits the rights of the citizen to freedom of choice. This, too, is informed
by previous experience, which gave the racist state full powers to limit
this freedom.
Both the IFP and the DA proclaim their attachment
to federalism. While the DA expresses itself as being against the centralisation
of power in the Presidency,
whatever this means, the IFP says: "In the next parliament the IFP will
continue to champion federalism and decentralisation of power between the
three spheres of government.The present concentration of power in an autocratic
threat which puts our democracy at risk."
In our 1992 document, 'Ready to Govern', we said
that the document was "structured
so as to highlight the strong relationship between the creation of political
democracy and social and economic transformation".
Historically, political power had been used in our country to extend social
and economic benefits to the white minority. In this process, a high degree
of geographic national integration was achieved. This was only compromised
by the deliberate apartheid interventions that sought to reduce this integration
through a process of balkanisation intended to marginalise especially the
African settlement areas.
Any attempt to "unscramble" the country, pretending that it can
be refashioned to meet some "federal" model would be absurd and
dangerous. This had to be taken together with the central proposition we
had advanced, that "The people shall govern".
This meant that even as we insisted on maintaining
the country as a "union",
we had to find ways to ensure that the people had the greatest possibility
to participate in the process of governance. This necessitated a balanced
distribution of power among the various spheres of government. But this had
also to be done without entrenching the racial and ethnic divisions that
had been imposed on the country.
Our Constitution was designed to achieve this balance. Among other things
this served to ensure that the democratic state has the necessary power and
means to address the socio-economic imbalances and disparities created by
the apartheid system. Of critical importance in this regard is the value
system that underlies the socio-economic clauses in the Bill of Rights, which
represent the very opposite of the values that informed the colonial and
apartheid system.
The "federal" aspirations of the parties we have mentioned seek
to weaken the interconnection between "the creation of political democracy
and social and economic transformation". This would disperse political
power in a way that would reduce the capacity of the democratic state effectively
to address the challenge of social and economic transformation.
The "federal" parties seek to achieve two objectives. One of these
is to create more possibilities for them to exercise some political power,
pretending that by this means they would be defeating "an enormous threat
to the survival of democracy", as the DA puts it. The other is to ensure
that the democratic state does as little as possible to change the social
and economic reality we inherited from the apartheid system.
This would seriously undermine the fundamental objectives
contained in the Preamble to our Constitution that we must "Heal the
divisions of the past and establish a society based on social justice." and "improve
the quality of life of all citizens and free the potential of each person."
The parties that loudly proclaim their opposition to the ANC are opposed
to some of the fundamental values underlying and expressed in our Constitution.
The ANC seeks no fundamental changes to the Constitution, precisely because
our basic law reflects the value system espoused for decades by the masses
and the struggle it led and leads. To the contrary, our opponents seek political
power to ensure that our country changes course, developing on a basis opposed
to the very value system for which so many sacrificed their lives.
Nevertheless these parties have had the sense to admit openly that during
the April Elections, the people will not give them the possibility to exercise
this power. However, they comfort themselves with the thought that another
day, and perhaps five years hence, the people will abandon their loyalty
to the values for which they fought, and accept those they advance. Ithemba
alibulali!
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