SOURCES OF POWER AND HOPE:
on the South African Constitutional Revolution
that dismantled apartheid and its structures.
Emeritus Justice Lourens W.H. Ackermann1
The values of dignity and equality, and their resurrection as fundamental and indefeasible rights in South Africa, played a most significant role in bringing an end to apartheid and, through the Constitution, completely dismantling apartheid and its structures. These fundamental legal values are closely linked to, and have by some been called a ‘secular analogue’ of certain fundamental Christian concepts.
I deal with:
1. The background to the South African legal system and the constitutional revolution in 1994 to demonstrate the extent of the legal revolution that has been brought about by these values through the Constitution.
The South African common law (ie non-statute law) is not, historically, Anglo-Saxon but the so-called Roman-Dutch law, introduced by the Dutch East India Company when it occupied the Cape in 1652. This Roman Dutch Law was the common law of Holland prior to the latter’s codification in the first decade of the 19th century. In the Cape and subsequently throughout the rest of Southern Africa, it continued to be applied and adapted as the common (uncodified) law. Since 1806, when the British first occupied the Cape, English law - more particularly in the fields of company law, evidence and criminal procedure - has exercised considerable influence in shaping South African law. But when difficult questions of law arise that are not closely covered by previous South African court decisions, the courts still turn to the European commentaries on Justinian’s Digest, and even to the Digest itself.
On the other hand, the constitutional law of South Africa, after unification in 1910, was modelled on that of the British Westminster system. The legislator was omni-competent and supreme (just like the British Parliament), and no supreme law or constitutionally entrenched Bill of Rights existed, against which the validity of parliamentary legislation could be tested, such as in the United States of America since the end of the 18th century or in Germany since 1949.
There was, however, one serious flaw in the way this model was introduced into South Africa. Even after the suffrage was extended to women, the vast majority of the population, namely the blacks, remained unenfranchised. By the time South Africa became a republic in 1961 the very limited suffrage that black Africans and persons of mixed racial origin – know as Coloureds - had enjoyed in the Cape Province had been removed and more than 80% of the population had no vote in Parliament. Black Africans were supposed to exercise their political rights in their so-called homelands, which constituted less than 15% of the Republic’s territory.
Prior to the constitutional revolution starting in 1994, six so-called ‘self-governing’ territories and four so-called ‘independent’ states had come into existence, pursuant to the notorious scheme of grand apartheid. These were in truth no more than puppet territories. By this time too, a presidential system had been adopted and the legislature come to be dominated by the executive. Increasing internal resistance and international isolation led to the adoption of the 1983 Tricameral Parliament which created three separate houses of Parliament for Whites, Coloureds and Indians, Blacks still being expected to exercise their political rights in their ‘homelands.’ Although trumpeted by the government spin-doctors as a power-sharing arrangement, a variety of manipulating provisions ensured that power in the Tricameral Parliament was in fact retained by the majority political party in the white house. South Africa was still in effect a white oligarchy in which whites enjoyed a form of parliamentary democracy. But by the 1980’s even the civil rights of whites were seriously infringed by the passing of draconian security legislation and the promulgation of successive states of emergency in the 1980’s. The South African Communist Party, the African National Congress (ANC) and various other liberation movements had, by this time, been banned for some time.
On 2 February 1990 President FW De Klerk announced the unbanning of the major liberation movements, the release of certain political prisoners and freer political activity. On 11 February 1990 Mr Nelson Mandela was released and on 20 December 1991 the Conference for a Democratic South Africa (CODESA) was convened. The CODESA process collapsed in mid-1992, but negotiations resumed in March 1993 at the World Trade Centre outside Johannesburg. This was made possible by the liberation movements agreeing to a constitutionally entrenched system of executive power-sharing for the first five years after the first democratic elections. Thereafter the negotiations proceeded rapidly with the interim Constitution coming into effect on 27 April 1994 and the 1996 Constitution on 4 February 1997.
The human contributions to this miracle embodied firstly, a two-stage constitution-making and transition process; secondly, agreement on a set of 34 inviolable Constitutional Principles with which the ultimate constitution had to comply; and thirdly, an arbiter in the form of the Constitutional Court. The Constitutional Court had to certify that the 1996 Constitution complied with all these 34 Constitutional Principles. Without such certification the 1996 Constitution could not come into force. The Constitutional Court, to whom this task- unique in the history of constitution-making - was entrusted, was an entirely new court established under the Interim Constitution.
These new Constitutions, breaking totally with the previous Westminster model, declared that the Constitution (and not Parliament) was from now on supreme and all law and conduct inconsistent with it invalid. The courts (with the Constitutional Court at the apex of the court structure) would decide on such inconstancy and invalidity. Both the interim and the 1996 Constitutions left the pre-1994 judicial structures, and the judicial officers holding office thereunder, intact. At the superior court level, there were no more than two or three black judges and one female judge. Considerable criticism had been leveled by, amongst others, the liberation movements against the composition and the judicial performance of the senior judiciary during the apartheid years and particularly during the various states of emergency. While these critics were, as part of the constitutional compromise, prepared to leave the existing courts intact, they were certainly not willing to entrust the task of reviewing the constitutional validity of national and provincial legislation and executive action in the first democratic South African state to the existing judiciary. For this and other reasons it was decided to introduce, at the apex of the judiciary, an entirely new court, new both in function and in composition. Thus the Constitutional Court, consisting of 11 Justices and obliged to sit en banc in all cases, came into being under the IC, and continued under the 1996 Constitution. Apart from its other exclusive constitutional jurisdiction, the Constitutional Court is the only court with the power to set aside Parliamentary statutes and those of provincial legislatures as well as any executive or administrative act on the grounds of constitutional inconsistency. I had the honour to serve on this Court from 1994 until 2004. In 1994 the Court consisted of 7 white and 4 black justices; in 2005 of 7 black and 4 white Justices.
The Abrahamic religions understand human dignity as being rooted in the fact that every human being is an image and reflection of God, and therefore in essence equal with every other human being. In Genesis 1:27 it is said:
This is taken further in the Christian New Testament where in Galations 3:28 it is stated:
Meeks3 points out that dignity, although a universally shared reality is not bestowed, is not derived from human action or status, is not a moral principle but the source of all moral principles and that human rights spring from dignity and not the other way around and that from the perspective of the biblical testimonies human rights are grounded in God’s creation of the human being in God’s image.
German theologian Jürgen Moltmann4, contending that fundamental human rights all grow out of dignity and not the other way round, explains fundamental human rights as meaning:
and points out that:
He also refers,5 to the key sentence in the declaration of the Roman Synod of Bishops to the effect that:
The much more comprehensive reformed Theological Basis, according to Moltmann:
Wolfgang Huber,6 the current Lutheran Bishop of Berlin, expresses it quite simply as follows:
Regarding the difficulties surrounding dignity he observes:7
He contends8 that an elementary aspect of a universal ethic is:
3. The way these underpinnings have influenced the development of these concepts of dignity and equality in law.
Immanuel Kant’s secular contribution to the legal recognition of these fundamental values of dignity equality and freedom has been of inestimable importance. As political philosopher Bernard Williams points out:9
As far as autonomy or freedom is concerned Kant postulates that a person, as a rational being, is the lawgiver in the kingdom of ends, and is free with respect to all laws of nature “obeying only those which he himself gives and in accordance with which his maxims can belong to a giving of universal law (to which at the same time he subjects himself)” But the lawgiving itself, says Kant, “must for that reason have a dignity, that is, an unconditional, incomparable worth … Autonomy is therefore the ground of the dignity of human nature and of every rational nature.”10
In relation to incomparable dignity, Kant’s views are encapsulated in the following universally known two passages:
In relation to equality Kant’s postulate is that:
Kant’s influence is unmistakable in the rich development of the so-called personality rights (“Persönlichkeitsrechte”, “Persoonliheidsregte”) in continental law and in modern South African law.14 The greatest development that took place in Europe in the 19th Century in the field of private law related to the protection of the products of the individual’s creative personality and the recognition of the so-called intellectual property rights (“immaterialrechten”, “droits intellectuals”), such as copyright, trademark and patent rights. This in turn gave impetus to the flowering of the personality rights, not in respect of goods located outside the individual such as the completed work of an author, but in respect of aspects of the personality itself, such as one’s body, honour, reputation, voice, image, etc. – in short, the whole panoply of personality components, which make up the human personality protected by private law.15
Before dealing more specifically with the South African human rights ad constitutional transformation, I would summarise this part of my presentation by formulating human dignity as:
I have modelled this on the classic German concept propounded by Prof Günter Dürig in the 1950’s:
I have somewhat broadened his exposition by introducing the human desire for self-fulfilment; as well as the individual’s own sense of self-worth, as an aspect of human personality. As far as the concept of self-worth is concerned, when a person is dealt with in a demeaning way, by someone in the exercise of power – whether public or private – even the observer can experience the impairment of the victim’s sense of self-worth.
4. The cardinal importance of these principles for the South African Constitution.
I don’t want to trivialise the sins of apartheid by a glib and superficial analysis of them. But what – in my opinion - lay at the heart of apartheid pathology, quite apart from the murder, torture and other physical brutality that it eventually led to, was the extensive and sustained attempt to deny to the majority of the South African population the right of self-identification and self-determination. The fact that the apartheid laws did not ultimately achieve their ends and that the greater majority of black South Africans claimed their freedom and exerted their moral agency does not detract from the indignity and trauma inflicted. The apartheid state not only denied to black South Africans all meaningful participation in the political process, but tried generally to legislate the lives of its people on the sole criterion of race or ethnic origin. Who you were, where you could live, what schools and universities you could attend, what you could do and aspire to, and with whom you could form intimate personal relationships was determined for you by the state, or at least the state directed all its power at achieving this end. The state did its best to deny to blacks that which is definitional to being human, namely the ability to understand or at least define oneself through ones own powers and to act freely as a moral agent pursuant to such understanding or self-definition. Blacks were treated as means to and end and hardly ever as an end in themselves; an almost complete reversal of the imperative concept of priceless inner worth and dignity, freedom and equality. Archbishop emeritus Desmond Tutu has pointed to the system’s absurdity: “Apartheid claimed that what imbued anyone with worth was actually a biological irrelevance – the colour of one’s skin . . .”.18
When one compares this situation with what has been achieved under the post 1994 South African Constitutions, the change can with justification be termed revolutionary. The rights and inherent values of dignity, equality and freedom lie at the heart of the South African Constitution and enjoy the highest entrenchment in the 1996 Constitution, requiring for their amendment a supporting vote of at least 75% of the members of the National Assembly and of at least six out of nine provinces in the National Council of Provinces.19
The inherent values of human dignity, equality and freedom are emphasised and reinforced throughout Chapter 2 of the 1966 Constitution, comprising sections 7 to 39, which chapter constitutes the Bill of Rights. It is significant that section 10 first proclaims that “everyone has inherent dignity” before entrenching the right of “everyone … to have their dignity respected and protected.” This underscores, in my view, the recognition by the Constitution that human dignity is not merely a protected and entrenched right, but that the concept of human dignity is definitional to what it means to be a human, that all humans have inherent dignity as an attribute independent of and antecedent to any constitutional protection thereof. It is, I would argue, accepted as a categorical constitutional imperative. The concept of dignity also plays, more indirectly and more technically, a vital role in the way fundamental rights are to be applied and the Constitution is to shape all other law.
Section 9, entrenching equality, first proclaims in subsection (1) thereof that “everyone is equal before the law” before entrenching the right “to equal protection and benefit of the law.”
Section 12, which entrenches the right to freedom and security of the person in a variety of ways, inter alia provides that “Everyone has the right … not to be deprived of freedom arbitrarily or without just cause.” The Constitutional Court has held that this right not only has a procedural component but a substantive one as well. This means that a person who is, for example, charged with a crime is not only entitled to fair process, which includes a fair hearing. The conduct criminalised must itself be of such a nature that it warrants criminalisation and upon conviction thereof, the deprivation of the accused’s freedom. The legislature is not free to criminalise, on pain of imprisonment, whatever conduct it pleases. The constitutional validity of the offence itself is subject to judicial scrutiny as to whether it constitutes “just cause” for the deprivation of liberty.
The guiding value of human dignity has been fully recognised in the Constitutional Court’s judgments. The epilogue to the interim Constitution read in part as follows:
Ubuntu20 is a black African expression usually translated as meaning ‘a human being is a human being because of other human beings.’
In S v Makwayane21, the case in which the Constitutional Court declared the death penalty to be unconstitutional, the importance of dignity for the new constitutional order was emphasised in several of the concurring judgments. The present Chief Justice, Justice Pius Langa, referred to aspects of the concept of ubuntu in the following terms:
So did Justice Yvonne Mokgoro, pleading for
Justice Catharine O’Regan expressed herself as follows:
In its very first judgment on unfair discrimination the Court, in Prinsloo v Van der Linde,25 highlighted human dignity as a key criterion for determining when differentiation amounted to unfair discrimination under the Constitution’s equality clause.26 It held that:
On this basis the Court held that differentiation in treatment amounted to unfair discrimination if the impact of such differentiation adversely affected the human dignity of those differentiated against, since all persons enjoy equal dignity.29 This view has subsequently been consistently endorsed. The Court’s approach emerges even more clearly in the following passage from the Prinsloo judgment:
This approach has been consistently endorsed by the Court in its judgment on unfair discrimination on the grounds of sex, marital status, sexual orientation and HIV/AIDS.31
Perhaps the clearest endorsement of the Kantian concept of dignity emerges from the following observations of the Constitutional Court in the Dodo case:32
5. How it was possible, in human terms, for this constitutional revolution to have been brought about by means of peaceful negotiation.
The answer is clearly multi-factorial. Economic decline and increasing isolation of South Africa by major international players no doubt played an important role. Yet the role of fundamental human values should not be ignored or trivialised in this regard.
The 1948 Universal Declaration of Human Rights and the United Nations Charter,33 highlight the crucial importance of protecting dignity, equality and freedom, because it has been the contemptuous disregard of these rights that have, in the words of the Universal Declaration’s preamble “resulted in barbarous acts which have outraged the conscience of mankind” and whose protection by the rule of law is essential, if humans are not “to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression.”
Repeated genocides, systematic torture and the wholesale slaughter of innocents is surely one of the darkest stains on human civilisation. One of the challenges of our times is to establish human dignity as an inviolable, universal legal and social norm.
The liberation struggle in South Africa founded its legal case on the rights enshrined in the Universal Declaration and the two International Covenants that were inspired by it. The legal justification for both the peaceful and the armed struggle was the large-scale breach by the South African state of universally accepted human rights. Equally important was the promise held out by the liberation movements that such human rights would be fully and effectively protected when they came to power in South Africa.
In addition there was the increasing realisation, at different stages and in different ways, by an increasing body of leading white South Africans, that the current political and constitutional situation was completely indefensible and could not be allowed to continue, whatever else the future might hold. Part of this realisation was the growing awareness that the political and constitutional dispensation was in material conflict with international law. I also believe that the theological struggle had a significant effect on both believers and non-believers because of the image of God arguments and their secular analogues. I know that, in my own case, my personal belief in the fact that all humans are created equal in the image of God ultimately compelled me to leave the Dutch Reformed Church; and that this belief, combined with my belief that the constitutional dispensation in South Africa was irredeemable, impelled me in 1987 to resign from the SA High Court.
I conclude, with one last, but important observation. In the light of the systemic indignity and repression that black South Africans were subject to, I am continually humbled by the kindness, friendliness and dignity that I experience from them. I believe that such success as the constitutional revolution might have achieved is due, in no small part, to their deep commitment to ‘ubuntu’: ‘a human being is a human being because of other human beings.’
1) SC; BA LLB LLD (hc) Stellenbosch University; MA (Oxon) Hon. Fellow
Worcester College (Oxford), Emeritus Justice of the South African Constitutional