FREEDOM DAY

The 18th anniversary of our first universal democratic election on 27 April 1994 should be occasion for celebration. This year, the appropriate response should be introspection. At no time since 1994 has there been more reason for concern regarding the future of our constitutional democracy.

On 5 March the ANC announced its intention of dispensing with some of the elements of the historic constitutional accord on which our nonracial democracy was founded - and upon which our future national unity depends. It said that the historic constitutional agreements that we reached during the negotiations between 1990 and 1994 were no more than a  ‘first transition'.  It said that this first transition embodied a framework and a national consensus that may have been appropriate for political emancipation, a political transition, but has proven inadequate and inappropriate for our social and economic transformation phase."

Evidently, former President Nelson Mandela did not regard our 1996 Constitution as a transitory document. On 8 May 1996, after the adoption of the new constitution, he said that its founding principles were "immutable".  He described the Constitution as "our national soul, our compact with one another as citizens, underpinned by our highest aspirations and our deepest apprehensions". He also pledged "Never and never again shall the laws of our land rend our people apart or legalise their oppression and repression."  

There are also disturbing indications that the government is thinking about limiting the powers of the courts to review the constitutionality of legislation and executive conduct. On 8 July, 2011 President Zuma warned, "the powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections".

He added that the government's political opponents should not be able to subvert the popularly elected government by using the courts to "co-govern the country".   He later stated baldly that the government wanted to review the powers of the Constitutional Court.

The clear intention is to limit or remove the power of the courts to review legislation and executive conduct.  In an article on 16 April Adv Ramathlodi, the Deputy Minister of Correctional Services and member of the Judicial Service Commission, wrote that "judicial incursion into other spheres (of government) should happen only in exceptional and limited cases - if at all."   

The simple reality is that if the courts lose their power of review, the Constitution and the Bill of Rights will be reduced to impotent pieces of paper with no role in limiting the power of the executive and of the majority in Parliament. We will no longer be a constitutional democracy subject to the rule of law. 

We should also be deeply concerned about the erosion of the role and independence of key institutions, such as the National Prosecuting Authority and the Judicial Service Commission. 

Government has consistently interfered with the independence of the NPA. It dismissed Adv Vusi Pikoli because he disobeyed presidential orders to drop charges against former police commissioner Jackie Selebi. The Constitutional Court subsequently set Adv Menzi Simelane's appointment as the head of the NPA aside because he was not a fit and proper person. More recently, there have been persistent and apparently well-founded allegations of high-level political interference in the NPA's decision to drop fraud and murder charges against General Richard Mdluli, the Head of the Police's Crime Intelligence Division.  

There is growing concern over the poliiticisation of the Judicial Service Commission. Critics charge that the JSC concentrates excessively on the race and political orientation of judicial candidates - and not enough on whether they are fit and proper people with sufficient experience and unquestionable integrity. 

The media, civil society and COSATU are worried that the Protection of State Information Bill will drastically limit public access to government information on mismanagement and corruption.  They fear that it could have a chilling effect on the freedom of expression and investigative journalism.

There are other reasons for introspection.

• We have failed to make progress in promoting equality in our society.
• We have failed to provide the vast majority of our children with decent education.
• More than 35% of our people are unemployed - including more than 70% of our youth.

However, our failure to make progress in these critical areas is not the fault of our Constitution. There is nothing in the Constitution that stands in the way of achieving success  with social and economic transformation. The problem lies in inappropriate policies and ineffective delivery - and not in any basic defect in the Constitution

Faced with these looming challenges, our reaction should not be one of despondency or despair. During the last 25 years we South Africans have been in far worse situations and have shown our ability to find solutions to the most serious challenges.

Our reaction should instead be to recommit ourselves to the values and the vision in our excellent Constitution.  We should redouble our efforts to build a society based on human dignity, the achievement of equality and the enjoyment of human rights and freedoms. We should insist on non-racialism and non-sexism. We should do everything we can to preserve our multiparty system of government based on accountability, responsiveness and openness.  

And most importantly, we should ensure that the Constitution will remain supreme and that everyone in our society - including government - will continue to be subject to the rule of law.

Statement issued by the FW de Klerk Foundation, April 26 2012

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