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AFRICAN NATIONAL CONGRESS

SOUTH AFRICA'S NATIONAL LIBERATION MOVEMENT

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Author : Nelson Mandela

Address of Nelson Mandela at his Investiture as Doctor of Laws

1 August 1993, Soochow University, Taiwan

The Honourable President of the University,
Esteemed Members of the Convocation,
Distinguished Members of the Faculty,
Ladies and Gentlemen.

It is a singular honour and pleasure for me to stand before you to receive this honorary degree from your University. Your decision to confer this degree on me is really a recognition of the role of our organisation, the African National Congress and a tribute to the valiant people of South Africa.

I am greatly honoured for the opportunity to share our thoughts with you on this occasion.

Our country has entered a period of momentous change. We are witnessing the painful birth of a united South African nation of equal compatriots, enriched by the diversity of the colour and culture of the citizens which make up the whole. These possibilities for fundamental and democratic transformation, away from the life destroying system of apartheid, have been created by dint of struggle. We have reached this stage because the people of South Africa, supported by the efforts of the international community, have made this possible through their determination to fight the good fight and not despair even during the darkest days of racist tyranny.

But the history of opposition to the vile policies of apartheid is not simply a narrative of struggle, defeat and renewal. There is a continuity in our resistance to apartheid which encompasses a noble tradition. The people of South Africa today face a new, and perhaps more daunting challenge, that of crafting a democratic constitution.

Ever since the foundation of the African National Congress, we have fought for a democratic constitution, for constitution freely adopted by all the people of our country and embracing their aspirations. We rededicated ourselves to these objectives in 1943, when the first ever bill of rights, "The African Claims", was drafted on the initiative of the African National Congress. As a liberation movement the ANC was unique in so firmly nailing its colours to the mast of justice and human rights, decades before the issue came onto our national agenda. We did so because these things mattered to us. This is what we have been fighting for.

In a South Africa living through the nightmare of Dr Verwoerd`s social engineering, we adopted the Freedom Charter in 1955. This is a document born of our struggle, rooted in South African conditions, and expressing the aspirations of the disenfranchised. Because of its content the Freedom Charter has met with international acclaim as an outstanding human rights document.

The Freedom Charter provides a sound moral basis for law and law making. It posed an inclusive basis for citizenship, at a time when the apartheid policy of racial exclusion, enforced through violence, was at its height. The Freedom Charter was an attempt to project a system of values and practises which would make it possible for people who subscribe to different principles to live together.

During the last three decades, from prisons, from the illegal underground organs of our movement, from our movement`s machinery in exile, the African National Congress has invoked the internationally recognised standards concerning self-determination, the criminality of the apartheid system and human rights as our response to the pretensions of the apartheid state.

In 1988, the African National Congress became the first political formation in South Africa to commit itself firmly to the principles of a democratic order based on a multi-party system, with the promise that a free South Africa shall be a non-racial, non-sexist and unitary state. Our other major contribution was our commitment to a Bill of Rights, a set of basic rights for all South Africans, to be enforced by a non-racial, non-sexist, and representative judiciary.

A movement without a vision would be a movement without moral foundation. Such a vision, we feel, has been provided in the draft Bill of Rights we published in November 1990. That Bill of Rights must be contextualised in the discussion document on the Constitutional Principles and Structures for democratic South Africa published in April, 1991.

These documents give concrete expression to the firm commitment of the African National Congress to a moral and legal order which is antithetical to racial oppression and exploitation. Our adherence to an alternative perspective of government based on democratic, non-racial and non-sexist values has given birth to an alternative vision for the future South Africa. More importantly, it is that alternative that provided a basis for the negotiations for democratic South Africa inaugurated in December 1991 at the Convention for a Democratic South Africa whose work, we hope, will be completed by the multi-party forum currently sitting in Kempton Park, outside Johannesburg, so that we can finally exorcise apartheid by establishing a free society in South Africa.

We in the African National Congress have always held that, despite its abuse over many decades, law can be liberatory a force in our society. We reject the authoritarianism and abuse of the law reflected in the practice of the de Klerk government. We subscribe rather to what is emerging as the most essential value of contemporary society - the right of the individual to have a voice in institutions that determine hers/his life. This means that we must promote democracy at every level of society. The best and most effective means of ensuring human rights and to promote the eradication of racism and sexism is to enable the full and unqualified participation of all races, sexes and classes in all aspects of society.

A democratic order must be based on the majority principle, especially in a country where the vast majority have been systematically denied their rights. While political and other discrete minorities rights must be safeguarded, we must guard against proposals which will demobilise democracy under the guise of power- sharing.

Our new order must therefore be based on constitutional democracy in which regardless of race, gender, religion, political opinion or sexual orientation, the law will provide for the equal protection of all. It will be an order in which the government will be bound by a higher body of rules - an empire of laws - and will not govern at its discretion. We reject an empire of man; we require the rule of law, as opposed to what Aristotle called the "passion of men".

Democracy and human rights are inseparable. We cannot have the one without the other. It is not be an easy road that our country is going to travel. The end of apartheid will not guarantee the beginning of democracy. But until apartheid is totally destroyed, there can be no democracy.

But we must warn against the language of rights being used to conceal attempts to maintain, I n one form or another, the power, privileges or special status of one racial group. The Bill of Rights cannot be a device to secure the political or economic subordination of the majority or the minority. The one lesson that struggle against racism has taught is that it must be consciously combatted, and not discreetly and quietly nurtured.

For this, we will need a written Constitution that serves as the highest law of the land; as a social compact guaranteeing the protection of the legal order. South Africa has never had a proper Constitution. Ordinary laws, disguised as a constitution, drafted by a racial minority which amended them at its whim, have been imposed on our country. It must not be so in the future .

Why do we need a Bill of Rights?

Firstly, a Bill of Rights provides an important statement about the nature of power relations in any country. Unlimited executive and legislative power - which continues to pervade our society under racism and apartheid - cannot co-exist comfortably with a commitment to individual political and civil rights.

It is an historic irony that the movement of the oppressed and rightless has made a categorical statement of our future intentions: that a future government of a free South Africa must operate, for the first time in our history, under a Constitution which will not only limit its powers I n relation to the individual citizen but which will be enforced by a Constitutional Court which enjoys the confidence of the people.

A democratic political order is not based solely on the accepted principle of one-person-one vote. It must in addition, recognise the constitutional right of dissent. It must also ensure that the power of the majority is constrained by constitutional means. However, we must reject any suggestion to insert eccentric and racially motivated proposals, which would impair the ability of a future government to embark on the enormous task of reconstruction. A Bill of Rights cannot be an instrument for the maintenance of the status quo . Though it will be an instrument for stability it must facilitate change.

Secondly, apart from political rights, the challenge facing the new human rights order in South Africa is respect for the cultural distinctiveness of our people, and for cultural and political pluralism that adds richness to the human experience. Language, culture and religion are important indicators of identity. To recognise this is not to encourage division in our society but to produce a legal order which is responsive to the needs of people.

On the other hand, it must be made quite clear that we cannot hope to build a post-apartheid society on the basis of apartheid models. We reject totally the assumption that the racial or ethic group is the basis of all social organisation, and, especially, power relations in society.

This approach conceals its real purpose: the maintenance of a privileged position for the dominant minority at the expense of the majority. The strength of the ANC`s proposals is that we underline the reality that human beings have multiple lives and identities within and across group lines. The most effective way of protecting minority rights is to protect individual rights. The protection of individual rights in the political, economic, cultural and social spheres ensures the freedom to participate and to associate, as they are compatible with the like rights of others. In other words, the core principle of human dignity implied in maximising freedom of choice, is the principle of mutual, and reciprocal respect.

The key, therefore, to the protection of any minority is to put core civil and political rights, as well as some cultural and economic rights beyond the reach of temporary majorities, and to guarantee them as fundamental individual rights.

The political order that we wish to establish therefore, will be one where there are regular, open and free elections, based on one-person-one-vote, without any educational or property qualifications at all levels of government - central, regional and local. It will also have to be a social order which respects completely the culture, language and religious rights of all sections of our society and the democratic rights of the individual. Finally, the legal order should assist, rather than impede, the awesome task of reconstruction and rehabilitation of our battered society.

We must address the issues of poverty, want, deprivation and inequality in accordance with international standards which recognise the indivisibility of human rights. The right to vote, without food, shelter and health care will create the appearance of equality and justice, while actual inequality is entrenched. We do not want freedom without bread, nor do we want bread without freedom. We must provide for all the fundamental rights and freedoms associated with a democratic society.

We shall leave it to the judiciary to determine which rights are directly enforceable at the instance of individuals. We shall be surprised if such rights as the right to clean water, to minimum nutrition and to adult education cannot be enforced by the courts. The condition prevailing on the morrow of democracy pose a challenge to the legislatures, to public and state authorities to adopt policies which will give priority to the rights of the poor and marginalised in our society. A denial of such claims would be to accept the dehumanising effects of deprivation and mass poverty as the lot of the majority of our people.

It is in this context that we will give careful attention to the need for action to undo the legacy of apartheid and sexism. Affirmative action is not a threat either to standards or to individuals. I t is an internationally recognised method of redressing past wrongs. To reject this mechanism is to accept the status quo and to ensure that the fruits of war, colonialism, racism, sexism and oppression continue to be nurtured in our society.

The experience of other countries has shown that the creative application of a Bill of Rights can generate confidence in government and in the administration of justice because it ensures that the rules of the democratic game are clearly established and cannot be changed at the whim of a government. A codified Bill of Rights will increase trust in a country blighted by insecurity and fear .

In addition to the substantive provision of a Bill of Rights, the African National Congress has proposed that further mechanisms be created to develop and increase confidence in the way rights are handled. These include a human rights commission empowered to bring constitutional cases before the court and an Ombud, a Defender of Citizens, with comprehensive powers.

The holding of fair elections goes to the heart of democracy. Elections determine the holders of office and power. Those who hold such power can hardly be the arbiters of how an election should be conducted. It is for this reason that we have proposed that interim arrangements be instituted to supervise, among other matters, the holding of a free and fair election for a Constituent Assembly. Further we have proposed that subsequent elections be conducted, not by the government of the day, but by an independent and impartial electoral supervision commission.

We want the values underpinning a Bill of Rights to become part of the culture of our people. For that reason it is important to recognise that the authority of these values is not ultimately vested in the constitution as such, nor in the power of the state, but rather in the people who at a certain point in history commit themselves to a process under the rule of law and according to a certain set of principles. For this reason the ANC believes that a Constituent Assembly, convened on the basis of agreed fundamental principles associated with democracy, must become the source of authority, to legitimate the process of the adoption of a new and dynamic constitution.

I would like to say a word or two about the emerging debate in our country as to the structure of government we should adopt. In a country where a racist minority has made a virtue of over centralisation, bureaucracy and impersonality, the form and content has to be democratic with participation and accountability at all levels.

However, we have contended that the actual structure of government must be a matter for the Constituent Assembly which shall draft the Constitution on the basis of agreed principles of democracy, many of which have been negotiated over the past two years and accepted by the major parties,

Whether there should be a federal or a unitary state is a matter therefore for the Constituent Assembly. On the other hand, we have already accepted the need for strong regions and stronger local government so that governance is brought closer to the people. What we cannot accept is that economic and social power is locked into the richest parts of the country. The result would be a central government which has neither the authority nor the power to embark on the reconstruction of the whole country. The equality principle must apply throughout South Africa.

The deracialisation of South Africa, the development of all regions on an equitable basis and the empowerment of the deprived are inevitable necessities in a country where minority racial power has led to enormous inequalities and disparities. The structure that best addresses these needs is the one we shall adopt.

Finally, a word or two about the international aspects of the human rights programme we have adopted. International human rights standards have provided the legal and moral inspiration for

the struggle against apartheid. By characterising apartheid as a crime, by protecting our combatants, by describing certain aspects of apartheid as genocide, the international community have vindicated our struggle. As a result, the apartheid regime has treated such developments with disdain and contempt. South Africa has been cut off from full membership of the international community through minority regime`s refusal to adhere to the basic international texts governing human rights.

Let me therefore say, unequivocally, that a democratic government, led by the African National Congress, will regard as among its urgent tasks the ratification of treaties dealing with children, workers, women, the environment and a host of other instruments, so that South Africa can regain its patrimony as a proud and respected member of the international community. At the same time, we shall provide for all our people a floor of minimum rights of which can be expanded as resources become available.

The challenge of a democratic constitution is what faces South Africa today. It is a noble challenge to which all my sisters and brothers in South Africa, I am certain, will rise.

Once again, thank you for this honour bestowed on me.


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