LAST Friday, on the eve of the 20th anniversary of the signing of South Africa‘s constitution, I was, physically and metaphorically confronted by a version of my much younger self. The view was not entirely reassuring.
The event was a reunion, of sorts, in Cape Town: former staff members of the Constitutional Assembly — the South African parliament which drafted our democratic charter between 1994 and 1996 — convened a panel of people closely involved in writing the document. Our task was to reflect on how it happened and to weigh the challenges of present times.
Before the discussion commenced — chaired with his customary combination of legal insight and showbiz smarts by Dennis ‘Judge for Yourself’ Davis — one of the staffers directed me to a large mounted photograph of the Assembly shot on the steps of the old Senate building of parliament the day before the final constitution was agreed on May 8 1996. The front row consisted of the political eminences who guided the process, who with one exception have either died or retired from active politics.
Cyril Ramaphosa and Nelson Mandela with the new constitution. Picture: TIMESLIVE
There was a beaming President Nelson Mandela, Deputy Presidents Thabo Mbeki and FW De Klerk, parliament‘s Speaker Frene Ginwala, Senate President Kobie Coetsee, Freedom Front leader General Constand Viljoen and yours truly, then leader of the small Democratic Party.
The only front-row person who all these years later remains in front-line politics is Cyril Ramaphosa, then the chairman of the assembly and today deputy president of the Republic, and tomorrow, who knows? But of course he took a long and very lucrative detour into the world of big business for more than a decade before his return to parliament.
When I gazed at my younger self from 20 years before I was struck by both the personal and the political: then I was just 39 years old, with a lot more in my hairline and less on the waistline, and my jut-jawed pose suggested I was not entirely happy for my political party to remain forever on the periphery of politics — it then had just seven MPs in its caucus.
This week I will celebrate my 60th birthday and, the ravages of time aside, the expectations then of the brave new constitutional project we were about to launch on the country weighed, I vaguely recall, quite heavily on the front row in that picture.
Would we succeed in uniting a nation torn apart by centuries of racial division around the common vision of a document?
Its lofty promise did not lack ambition: the preamble proclaimed that “we the people…adopt this constitution as the supreme law so as to lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is protected by the law”.
Just how far we have strayed from this promise is well known to every reader of this newspaper, who reads with either anger or resignation of a rogue, clearly delusional, chief executive at the SABC, encouraged by an enabling minister, or a Gupta feeding frenzy at the same corporation or serial misgovernance at any number of other state-owned companies.
And then there is the president himself, the top of the pile, the most powerful pivot in the entire constitutional scheme, judged this year by the highest court, two decades since 1996, to have “failed to uphold, respect and defend” the very document he swore to honour.
The eleven official languages on display at the Constitutional Court. Picture: SABC
Of course, the implicit assumption in the constitution is that we will all raise our standards to fulfil its highest promises.
But last week, in the essential matter of mathematical education, the government sent out the opposite and bleakest signal when it dropped the “pass” rate down to 20%: you do not need to lift your standards, they say, standards will be lowered to reach you.
Aptly, the only member of Friday‘s panel who was present in the assembly 20 years back and remains in parliament today, Freedom Front Plus MP Corné Mulder, offered two observations which go a long way to explaining why we veered so far from the idealism of our founding document, but also why there is some hope in future redemption.
He pointed out that there are fewer than a dozen MPs left today who were involved in the drafting of the constitution itself.
The heady atmosphere, the clashing dramas and essential compromises, and even the violent landscape on which the constitution was etched, was not experienced personally and is entirely derivative for 95% of current parliamentarians and for all but two or three of today‘s cabinet.
But Mulder also reminded the panel and audience that the constitution creates offices, instruments and processes. It is human beings who fill those positions and fashion their uses or abuse the solemn trust of office.
For example, the same presidential powers — far too extensive and unchecked in my view — were vested in Nelson Mandela and Jacob Zuma. The former chose to constrain himself in their use, the latter does not.
Then there‘s the universally admired and now sadly departed public protector Thuli Madonsela. She chose to use her office to take on the most powerful forces in the land. Her two predecessors, enjoying exactly the same powers and status, did not. Of her successor, judgment awaits but early signs do not reassure.
Another of our panel, former constitutional judge Albie Sachs, derived some comfort from the extraordinary events of this year — from the fightback on Nenegate and Nkandla and the reanimation of a slumbering parliament now called to account by the court in which he once served.
But then sitting next to me on the panel was my former parliamentary colleague Willie Hofmeyr. Twenty years ago he was an unimpeachably honest ANC MP; today he is the under-siege deputy director of public prosecutions.
But he is imperilled today precisely because he brings into the prosecution service the values the constitution admires and which the present administration despises: integrity and independence. His observation that perhaps we “were too starry eyed” when we wrote the document sounds almost elegiac.
My own thoughts of then versus now were summed up by a famous US judge, the wondrously named Learned Hand.
Way back in 1944, when Jacob Zuma was an infant and two years before the birth of Donald Trump, he offered this imperishable wisdom:
“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.”
In other words, it is up to us as citizens to reclaim the constitution. As simple, and as complicated, as that.
– The Times