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CONSTITUTIONAL PRINCIPLES

 

The Application of the Rule of Law and the Transfer to Democracy

in South Africa

 

Thursday September 5^th, 2002

 

Ambassador Hotel, Sheikh Jarrah, Jerusalem

 

 

Speaker: Advocate Leon Wessels1

 

Moderator: Dr. Mahdi Abdul Hadi, Head of PASSIA.

 

 

Leon Wessels’ Keynotes:

“What is appropriate for one country in the light of its history, is not necessarily appropriate in another country with a different history. Our final Constitution must now be forged in the light of our history and on the basis of agreed constitutional principals which both reflect that history and are part of it”

Arthur Chaskalson: President of the Constitutional Court, 17 July 1995.

 

 

I had the privilege this morning to participate and sit in long discussions with lawyers and I attended a press conference in this hotel2, and I think the difference between what was happening over there and what I am about to tell you is that I am talking about history, and the one thing we know for sure is that people are shy to learn from history. They want to make their own history and learn by trial and error. I found out that it is a sad event but it is a very light event. Many of the things that were said there and that happened there were so comparable to what we are going through.   

 

The international community declared apartheid a crime against humanity. To put it mildly, the practice of segregation and apartheid had a tremendous effect on South Africa and South Africans. I even listened yesterday how colleagues referred to Apartheid systems and practices in this part of the world. Whether it is fair to compare or not is not part of my discussion here. But that system had an effect on South Africans and many South Africans from all persuasions, regardless of where they came from politically or the type of struggle they were involved in, have expressed themselves in different ways related to the impact it had on their lives. The matter was that:

§           We did not know our land (thus how effective apartheid was)

§           We did not know our people

§           We did not know our history

§           We did not know each other.

§           We are still grappling with the past. It keeps haunting us.

§           We are working day by day to ensure that we do not to repeat our mistakes. We are also trying to deal with the vestiges of Apartheid.

 

 

For decades, the National Party government had a very unfriendly relationship with the rule of law. The rule of law was regarded as something which was devised in other countries that people want to impose it on us in order to ensure that the system changes, and therefore there was a hostility towards the rule of law. It was argued that judges were not to pronounce on the validity of legislation or to question the discretions exercised by the executive when they acted in terms of security legislation. The reasoning behind that was that judges should be above politics and the ability to overturn parliamentary and executive decisions would draw these judges into the political arena.

 

The resultant encroachment on civil liberties and the vast powers granted to the executive were born on the basis of the Latin expression salus rei publicae suprima lex (the security of the state is the highest law).  Nothing goes before the security of the state and the people, and those who are the state and those who occupy the seats of the executive will determine what is security-related and what is not. There was never much of a debate beyond this point. Because if you took the debate further than that, the chances that you would be labeled as aiding soft on security and/or taking sides with the enemy so to speak, were real

 

In many respects, that victim replied to both sides of the conflict in different ways. To wrap it up, it is simply to say that it was a good argument in service of authoritarian rule. Today in South Africa, it is generally accepted that this approach led to an abuse of power. South Africans were shocked and in many respects, are still shocked. They feel ashamed by the horror stories told to the Truth and Reconciliation Commission. It became clear from evidence before the Truth and Reconciliation Commission that even sharply, probing judges had been willfully misled in many cases by key security forces personnel. Not surprisingly, some individuals had done the same to gullible politicians not excessively keen to ask pointed questions.

 

In my own way, I had been aware of things that had caused discomfort in official circles, but because I did not have the facts to substantiate my suspicions or had lacked the courage to shout from the rooftops. I have to confess that I only whispered in the corridors. This, I believe is the accusation that people may level against many of us in South Africa. We did not confront the reports of injustices and abuses head-on.

 

In a lighter frame, you will not find somebody who ever supported apartheid, and if you do find someone, they will be by far outnumbered. There are no more living apostles of apartheid, something just happened and nobody supported the system.  It is difficult to understand how the system was ever sustained. We simply could not confront the reports of injustices and abuses head-on.

 

One question kept on haunting me: When a new dispensation comes about, how would South Africans deal with the past? Like a philosopher once wrote that “you have to understand the past and you have to love the future”. So we were all ready to love the future, but how could we deal with the past? Would we try to speak about it and deal with it- or would we take the easy option and simply ignore it? You cannot ignore the past, but you also cannot deal with it in a spirit of emotional bullying and vengeance.

 

When the epilogue to the constitution was finally accepted at a very late stage in the negotiation process, many of us gave a sigh of relief. The relief we felt was for the fact that we would have the full truth out in the open without vengeance. The epilogue was a simple paragraph which stated that under this new dispensation, there would be Amnesty for those who had committed human rights violations. So the criteria to be developed was how to deal with those Amnesty applications, and the reparation for those individuals’ families who had suffered because of the human rights violations. This, to a large extent started a process of opening- up the past, of talking about the past, what had happened, and people getting to know their own history. It gets further momentum to the protest of accepting a democratic South Africa. A number of senior members of government and government officials informed me at that stage that they would not have supported the new constitution if there had not been an agreement about the process of Amnesty. That process taught us how we had not known our past, how we had hurt one another, and we realized that the time for healing had arrived. Those ringing words in the epilogue that provided for the process of uncovering the whole truth and of granting Amnesty, marked the beginning of a long road to reconciliation.

 

Mr. Justice Richard Justice Goldstone, currently a judge in our constitutional court, but who a member of the United Nations tribunal investigating human rights violations in Bosnia-Herzegovina, is on record as having remarked favorably that South-African Amnesty process was a compromise between collective amnesia (forgetting the past and moving forward) and Nuremberg-style trials (tribal persecution).

 

There are so many exciting and interesting things happening in the international arena of which the establishment of the international criminal court is certainly a reality, and one of the elements in that court is that international jurisdiction could supercede national jurisdiction if there was not an internal national process with integrity to withhold international jurisdictions.

 

Now taking this into the South African theater, I believe that it is up to the political stature and the integrity of former President Nelson Mandela and President Thabo Mbeki to gain international acceptance for the South African process of reconciliation; to put our past to rest nationally and internationally, but never to be forgotten, as a reminder that it should never be allowed to happen again.

 

The idea of a constitutional state officially became part of the National Party’s rhetoric in the early Nineties. The building of a new constitution for a democratic South African society, the establishment of a Constitutional Court and the birth of a constitutional state, all of this followed soon during and after the elections of 1994.

 

The idea of a constitutional state was foreign to South Africa because we were raised on the British Model of parliamentary sovereignty and the A.N.C were suspected of being a group of people that would endorse simple majority rules in which the Westminster system of parliamentary system would actually favor the argument. It would not only favor the demographic, it would also favor the argument for what they had struggled for. But part of the negotiations was the concept of a constitutional state where certain values underline the whole judiciary of the whole judicial system regardless of the loyalty of the majority of people occupying seats in the national assembly of the parliament, which is something that was strange for the discussions and debates prior to negotiations and to the whole information which was embedded in the opposing factions, but in a vivid constitutional state and further development beyond 1994 delivered the core values which underpin the constitutional state.

 

I do not believe there is an individual who can claim that this was their idea. It was the collective result of negotiations, as well as judicial interpretation which has delivered the idea that human dignity, equality and freedom should be the core values which would underpin the constitutional state. I think that is something of which we are proud of. It was a collective process and has served us well up to now, and is in the minds of the formal scholars in our country that we will say that in the immediate future. The idea of constitutional principals which we all agreed to were the result of many debates. This meant that at one stage it was prohibitive for the negotiators to talk with one another, because of the nature of the conflict. All official contexts would sever. So it turned out that some of the negotiators were in an aircraft together, passengers in an airplane. Nothing prohibitive, discussions in the air while the airplane was on route, and that was the nature. People would simply meet in the corridors and the passages of the aircraft and talk. I remember that during the concluding remarks, we had to come to some sort of understanding very quickly because the aircraft was going to land. That was nature of the discussions, because there was a desire to talk, regardless of the rules that precluded people from talking and meeting.

 

Constitutionally speaking at that juncture, we were caught in the old jargon of majority- rule not working in Africa. Choices had to be made between the traditional  Parliamentary rule as I just explained, or a constitutional state guaranteeing a chapter on fundamental rights. Then there was the additional issue, introduced by the National Party, of individual versus group rights. A decision had to be taken whether South Africa would be Federal or a Unitary State, and last but not least, whether the system of power sharing had to be devised.

 

In the process, all of us involved learnt a few important truths about negotiations and  constituency such as :

§      First and foremost it was important never to let go of your dream.

§      Never allow the process to be derailed.

§      The main players/actors, more than anybody else ought to believe that a solution was possible and that they should trust one another without any reservations.

§      It was equally important not to underestimate the constituency one was representing and not to give them only such information as you thought they wanted to hear. One should be open at all times and give them all the facts, the whole truth and nothing but the truth.

 

A number of important lessons were drawn from the South African experience:

§      There should be a commitment to negotiate and be loyal to the constitution- making process. I can find a number of occasions when constitutional negotiators would never play political games with one another, they would argue, they would disagree, they would raise their voices in private, they would confront one another, they would disagree, they would agree to disagree, but they would never ever play political games that would erode or impair that particular process.

§      Negotiating partners must have the maturity to be able to compromise. Negotiations without compromise mean nothing. If a compromise is not part of the negotiating process, it means you have to beat the other side into submission. That is not what negotiation is about.

§      Negotiating partners must be of the firm belief that obstacles can be overcome. When I remember some of the negotiators, what amazed me and what I carry with me even today is how they thrived on obstacles and barricades. It was an impediment because there were simply challenges that had to be overcome. We all came to a conclusion at that stage about what a BATNA Is, BATNA is the best alternative to the negotiators’ agreements. If you didn’t find an agreement, what was your alternative? To continue working on that concept.

 

This concept of a constitutional state was, however, only embraced emotionally for the first time in 1996 (before that, it was only intellectually embraced) two years after the implementation of the idea of that concept, when the constitutional court at first declined to certify the constitution. In other words, the Constitutional court, two years after its establishment, asserted its independence by declining to rectify our constitution. This decision meant more for the independence of the Constitutional State and the idea in the minds of the supporters of the National Party than anything the court had done before.

 

The reason for this, of course, was that the National Party feared that its own history would repeat itself, that the liberation movement, the African National Congress, would due unto them what the National Party had done: That is that judges and prosecutors would be appointed without consultation by the executive. In addition, some of the judges had been advisers to the ANC during the negotiations. Therefore, the National Party was extremely sensitive to the issue, not because they had little faith in the judiciary’s ability, but because they were uncertain about their independence, and this is the heart of what a Constitutional State and the judiciary means. It does not mean that never in your life had you been part or a member or associated or defender of a political opponent. It simply means that the integrity was of such a nature that you would interpret the fact and the law before you independently.

 

The vehicle of judicial interpretation was also employed on many occasions to break deadlocks and reach compromises during the negotiating process. Had this tool not  been available, the negotiators would still have been at loggerheads today. The most telling example in this respect was when the right to life was written into the Interim Constitution. Political parties held diametrically opposed views and no compromise was possible. The ANC on the one hand said that you cannot have the right to life in a constitution where the death penalty is possible, given the history of our country. You could not reason and you could not compromise on something as fundamental as that. On the other hand, the National Party felt that the death penalty in the Constitution should act as a deferral to those who commit deeds of terror, crimes, …They would not reason beyond that. Now how do you resolve that? Do you allow constitutional deadlock to derail the whole process? What should one do?

 

 It was agreed that the right to life without a further qualification would be written in the constitution. That was when I in particular phrased the concept of “constructive ambiguity”. The ANC could leave the negotiating table and say that the right to life is fundamental and crucial. That It is written in the constitution, and, if any interpretation is called for by the constitutional court, the possibility of a death penalty would be ruled out”. While the National Party could leave the negotiating table and say that there are international precedents where the right to life can be compromised under specific circumstances: judicial process, failed trials and committed crimes which warrant the death penalty.

 

All of us at that juncture had to relinquish our prejudices and believe that the constitutional court, that we were in the process of creating, would deliver a judgment in our favor, and one of the first judgments of the constitutional court was when they were to pronounce what the right of life means. All eleven justices voiced their opinion because it was so fundamental and it was a unanimous decision that the right to life means that you cannot impose a death penalty. Besides, that judgment depended on international studies by scholars, lawyers,.. On the other hand, there was a leap of faith jumping into the future by all negotiators. This was resolved by saying: “Well, let us leave our prejudices here, and take the court forward and leave it to be interpreted by the court as we move along”.

 

In the end, the playing fields were established and now political parties can debate based on how best to govern in the interests of the citizenry of South Africa. Throughout the previous decade of South Africa’s existence, the debate had only been about constitutional rights. Now the interests of all the people, good governance and accountability to electorate are central. Just to make a point that people would not argue about taxes or education or subsidies for sporting events, sportsmen and women, pension schemes,…. That was not what mattered. What mattered was: “What is the political dispensation? What is the constitutional dispensation?” and when I said earlier on, we grappled with the vestiges of Apartheid, there was a generation which grew up under the slogan: ”First liberation and then education”, and that is how they struggled for liberation. Now political liberation is a reality and many of them: grownups, adults, still find themselves now to be unemployed because of the lack of literacy, and those are the issues we are dealing with. So liberation, in terms of delivering a constitutional state, was much more than just liberation for a section of our community, who had been at the receiving end of the Apartheid system. It is the liberation of a nation, and that is how one should view the formation of a constitutional state.

 

I do not want to talk much about myself, but just to illustrate the point on how I think I can claim to represent a particular generation and a particular group of people, contrary to what is popularly accepted and known, I am an African, and I am an Afrikaner, and we are Africans and Afrikaners. We now have an obligation to make our system work. Some observers are filled with skepticism when Africans talk about human rights and democracy. However, I believe that the moment has come for the tide in Africa- and especially in South Africa- to be turned for once and for all, to prove that good governance based on democracy and human rights is part of our future.

 

The joyous part of the democratic process is that we are discovering, and in many ways rediscovering our land and our peoples. There is a wealth of cultures and languages to be respected and understood in this process of building peace and the building of our nation.

 

The terrible perceptions and fears that we had for one another are changed as we have come to realize that the only viable route to co-existence is through mutual respect and co-operation. We are now tackling our mutual enemies, namely poverty, illiteracy, unemployment, etc. side- by- side in a true spirit of prioritizing our hopes over our prejudices.

 

The healing process is a long one, and the remaining journey remains fraught with danger. However, the scars of the past will not deter us, but rather remind us of the nightmare and further inspire us to keep on living the dream as we continuously work at realizing a better future for all South Africans.    

 

On the Validity of a Constitution:

 

The exciting thing about having a constitution in the making with your hands is the objective of making it a living document. It can only be a living document if it means something to the silent people you are talking about. That was something which was formal in our minds: the constitution had to be a living document.  Those constitutional fathers and mothers who gave birth to our constitution, never claimed eternal wisdom like the constitutional fathers of America. We simply said that there are many people who believed in this process. Therefore, this process is only the beginning of making it a living document. It has to be interpreted and revisited. It has to be told and taught to everybody. There is a provision signed in the constitution, related to how you can amend the constitution, so much for the majority for this or that particular section, but there is in addition to that a provision which said that on a regular ongoing basis, Parliaments must revisit the constitution, talk about it, and the electorates are invited to make submissions on how they feel the constitution affects them or how it could be corrected. So the idea was never to carve it in stone. It had to be rigid so that it could not respond to the wills of the simple majority on every occasion. It had to be fixed in that sense, but it had to be flexible since it was not a Holy Book. It was something that people could enjoy on an ongoing basis. Every goal as I mentioned the core values that underpin the constitution are values that furthermore enshrine the interpretation: freedom, dignity and equality as we go forwards.

 

Now to turn to your first question: I think we were only partially successful. The first two groups I would refer to as the political elite, those in power, and those that were heading negotiating teams or representing people who were negotiating. They knew what they were talking about, they were invited by outsiders, scholars, practitioners, from across the globe…That was the moment for the professionals, lawyers, academics, NGO groups. That was the moment they had hoped for, that they agreed on. Somebody had left out short as a young lawyer or academic to go into exile or had gone abroad to study. People in exile were dreaming about returning to build a new constitution.  Academics had written books, articles and suddenly, that was the moment. We are writing a constitution. What have you been reading and writing about all these years? Tell us. What should the South African constitution look like? At that juncture, we realized that there was a majority of South Africans who did not know the difference between parliamentary sovereignty and the idea of a constitutional state, the separation of powers between legislator and judiciary but they were not fools. That is why I said you have to take your constituency along and you should not underestimate them. They were not fools. They knew whether they were employed or unemployed, whether they had the right to strike or not, whether they had access to state resources or whether they could move or be moved. They knew all of that, now we were only partially successful because we tried to consult them and inform them.

 

I think there is room for improvement. We consulted people through the normal political structure. There were many constitutional conferences, debates, pamphlets, advertisements... It was there, but it was foreign. Those who were in a particular party were there, but they were consulted through public invitations soliciting and asking for appeals and comments. They participated in large numbers, in thousands, people would rise, policemen would say: “I am on duty in this little border so many hundreds of miles away from Cape town, and I am on duty. I am alone. I have seen your invitation, I am taking this opportunity of writing to you”. He would express relevant or irrelevant, he would express his hopes and fears about a constitution. It may not have been about how a particular section should be crafted. It may only have been on a plea for a different salary or a pension or access to electricity or telephone, but that was his contribution.

 

I think the greatest achievement of all of this was that we drafted a constitution in public, especially in the interim phase of 1991-1994. That was we were in the blaring lights of television camera all the time.  I acknowledge myself as not an attractive guy when I am not smiling, and I was not smiling then. It was a serious situation, it was a matter of life or death. A nation was born. It was so nice to hear people years after the event telling us: It is so nice that you can finally smile and laugh. And that in itself illustrates how the process was portrayed. It was a loving thing. It was not a closed door and only two leaders coming out and saying: ”You have reached an agreement, you have a constitution”, it was long nights on television cameras to the extent that people thought I could not smile, and in my opinion, the living proof is that, to wrap it up, you do not put a full stop after an agreement. Whatever agreement you reach, you do not put a full stop. You communicate, you talk, you explain. The art of democracy is persuasion. You have a duty, an obligation to inform. The fact that people do not understand the fine prints of a constitution does not mean that they are not wise or that they do not know what affects their lives and what does not affect their life.

 

Religion VS. Constitution: On diversity of opinion:

 

The Bible is in my heart, the Constitution is in my hand. Let me tell you something: they do not mean a lot in terms of just looking at them, but to find them in the acceptance of everybody is enormous. The preamble ends in: ”May God protect our people”, and in Xhosa language:“ May God Bless all our people”, and then in Afrikaner and English “God Bless South Africa”, and the same words are also stressed in Xhosa and in Zulu.

 

Now to find those words and to find them accepted, not only in the religious community, but in a language, one language, is impossible, because there are eleven official languages. Now students and scholars have subsequently written doctoral thesis on this Constitution, on the religious section of the constitution and have declared they were happy with the freedom of religion.

 

 

As I indicated previously, we were steeped in the British tradition of Westminster.  All the parliamentary sessions were opened by a prayer, one specific prayer which was written out. The tradition of that one prayer I am told, was that in the British parliament, church leaders were invited to open a particular session of parliament. They would then look at all the papers, and they would decide to make a prayer and a sermon. So if you were in favor of the use of alcohol, and this had to do with the distribution of alcohol or if you were opposed to that, whenever you were invited to that session of parliament it would take an hour in prayer against the distribution of alcohol.

 

So there were external influences and one agreed prayer negotiated by all the political parties, which did not favor a specific religion and which prayed to the Almighty God. That was the tradition, and it was a member of Parliament that would read the very same prayer every single prayer. It went along the lines: “Almighty God, Bless this Parliament in its deliberation and Bless the Nation..” and that was about it. And everybody, Christian, Jew, Muslim in that Parliament, would participate. Now when the negotiations started, there was a request in December 1991 that the magnitude of all the political parties in South Africa, in and outside the Parliament could not meet without a proper meeting and a proper opening of the proceedings. Now who would you invite to lead those proceedings? The Rabbi? The Protestant Church? The Roman Catholic, and all the religions that practiced religion in South Africa?. It was agreed that we would invite all of them. All the major religious groups would be invited, and they read from their Holy Books and prayed. All of them. One after the other were given three minutes or so and they did. It was the first time in my life that I had been subjected to an exercise such as that, to Listen to the variety of religious leaders. The most prominent religious leaders in South Africa took the opportunity and were invited.

 

Now you cannot go through that process everyday. We then agreed that we would dedicate one minute for silent prayer and meditation. In that minute you could do whatever you wanted If you were not a believer and did not want to worship, then you would be silent in respect for others during that one minute or you would engage with your Almighty God. That obstacle of starting the procedure was overcome.  On that moment of silent prayer and meditation we grappled for at least five years.

 

Seeing everybody together, while we were constituting for the first time in December 1991, the difficult things that would follow, the ups and downs, the breakdowns, negotiations, elections, final constitution… All of that resulted in an acceptance that you would be allowed to practice your individual religion, but the State would govern everybody.

 

 I am always hesitant to try and speak about somebody who is not present, and also to represent somebody and to represent people who hold a high office and are regarded in high esteem, but I think there were few individuals who played a major role to break down this fundamentalism or this hard line approach towards religion, and it was Nelson Mandela himself who refused to be drawn into any religious debate or discussion at all. Now he exclaimed publicly during his twenty seven years in prison, he had the support of all religious communities. The second person was Archbishop Desmund Tutu, an Anglican who had a high office in the Anglican church, but who had always explained tolerance and understanding towards everybody.

 

Desmund Tutu and the Path Towards Reconciliation:

 

Some of my old friends have helped me in my own development and growth through this. But overnight something happened which I did not think was relevant, but that silent majority that you referred to in particular in the African community, the religious groupings were thinking about it in the forums, there was an enormous EVENT, in their thinking, and that was the collapse of the Berlin wall. When I met with Desmund Tutu in 1985, it was a big event, a big controversial story in my own family circles and friends. There was a meeting of minds between the two of us. I had to discuss with Desmund Tutu something very problematic. The first thing Desmund Tutu did, was that he did not ask me, he just opened the meeting with a prayer. He said: “Now let us pray” and we prayed: Desmund Tutu and I. That became very significant in the area, the constituency that I had to carry with me.  That private meeting with Desmund Tutu amongst other views that I can never denounce what happened in private between us. I could never ever think of Desmund Tutu again as a terrorist, as somebody who advocates centers against the country, as a dishonest man, as someone who thrives in conflict. This was a tremendous communion, even up to now. When Desmund Tutu left the church in 1996, there was a public event in Capetown, after 11 years of that first meeting. There were many important people present, but Desmund Tutu asked me to speak on that occasion, and it was based on that first encounter.

 

What I am saying is that any particular event, any external event can change the whole scenario and the relationship between individuals. Which was not important, suddenly becoming extremely important.

 

I can talk about this for a really long time, but let me tell you something: I appeared in front of the truth and reconciliation commission, and there was an article written about that particular day, and the article concludes: Women were looking down at the open space between where the witnesses had participated, where the audience had sat and where the commissioners were lined up. The only thing they could see was Wessels and Tutu embracing in the open space.