Freedom Day this year falls amongst a number of conflicting events and developments. The Universal Declaration of Human Rights sees its 75th anniversary this year, bombs fall on Ukraine, and untold millions of needless deaths occur each day. In every corner of the world, the realisation of basic human rights needs to happen on a grand scale.
It can wait no longer. With failures at municipal and national levels interfering with the delivery of basic services, and war pushing up the price of necessities like grain and fuel, the tone of any discussion of Constitutional Rights ends up rather sombre. In this climate, gloomy though the discussion may be, the need for it is greater than ever.
As South Africans, we hear a lot about our Constitution. Our media refer to it quite often, covering developments in the Constitutional Court and Parliament, we get taught about it at school and we even amend it every so often. We are lucky, South Africa! We may not hear that often, but in comparison to our international neighbours, we are the top achievers in our involvement and development of one of the most respected and comprehensive Constitutions in the 2 500 year history of Democracy.
In 1994, we achieved our freedom. South Africa held our very first, truly democratic election. Two years later, we achieved freedom for people on an international scale, with our Bill of Rights and the rest our Constitution coming into effect 1996. A milestone that few other nations have ever achieved, we liberated the hundreds of millions of people who now live under new constitutions modelled on our own.
While we were not the first country to overthrow unjust, minority rule, we achieved unparalleled success in the process that we designed to build our new nation. What we managed is still considered a mighty achievement by giants of the democratic process such as Canada, the United Nations and Amnesty International. Even the late American Supreme Court Justice, Ruth Bader Ginsburg suggested that Egypt look to the South African Constitution (rather than the USA) when they began their own democratic transition in 2012. Ginsberg referred to our Constitution as “… a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary... It really is, I think, a great piece of work that was done.”
The Constitutional Assembly implemented a massive public participation programme throughout the country and received over two million submissions. It established a qualitative global benchmark for public participation in policy and law-making processes.
Some provisions in the Bill of Rights apply not just between the state and private persons but also between private persons. The clause on equality contains strong provisions including the prohibition of discrimination on the basis of sexual orientation; and the Bill of Rights includes socio-economic and environmental rights.
Edward Shalala, Director of the Centre for Constitutional Values, says that, “At the time it was adopted, the South African Constitution contained a number of rights, obligations and provisions that were unprecedented, either because they were being included in a constitution for the first time or because they went further than had been the norm.
Our constitution has been used to develop and substantiate legislature that changed the lives of millions of people around the world. Albie Sachs said in an interview “It became a source of enormous pride to discover the extent to which courts internationally cited the South African Constitutional Court. In India, our decision on same-sex marriages was relied upon. Our decision about prisoners’ right to vote was quoted in Canada. I’m told by justices of the European Court of Human Rights that they always look to the South African Constitutional Court decisions when developing their approach on how a modern, contemporary, thoughtful and sensitive court should deal with issues.”
Most of us will look at that and think, aren’t everyone’s? The answer is no. Many other constitutions were written to promote the rights of a certain group over others, and do not include socio-economic rights we have such as education and shelter. Unsurprisingly, the previous South African Constitution was one of those, and it was through the decision to see our new Constitution as a document for transformation and change, that led to an entirely new framework being developed.
None of us will say our country is perfect. However, what we have is an implementation problem, not a plan problem. The plan is great, it’s getting g the plan rolled out that is proving tricky. Compare that to other countries, even established democracies like the USA, that have little to no provision for socio-economic or interpersonal rights enshrined in their constitutions. Our service delivery may be sorely lacking, however we know this and we already have the framework to do better. In other words, the ladder is there and we just need to climb it. So we are lucky, South Africa. Think of those that are nowhere near the top and have no ladder.
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