Carnegie Reporter, Vol. 4, No. 2 | At The Heart of South Africa: A Constitution & A Court, page 4

Controversy Amid Change
Justice Sachs’ tours wind up in the great foyer, in a symbolic concrete forest clearing. He then directs attention to a large seal on the Court hearing room door. It is the logo of the Constitutional Court—a tree with branches spreading over the people it protects. This is representative of the traditional custom throughout Africa of settling matters and disputes under the protection of an important village tree.

The choice of the emblem and the incorporation of the tree concept into the very design of the building may be seen as somewhat ironic because many traditional courts continue to be held in villages under trees, and some leaders are insulted by what they feel is a hijacking of a symbol of an authority that they insist has been undermined by the constitution. Some observers say that a constitution many regard as the most progressive in the world was bound to clash with traditional customs that placed a premium on hereditary, unelected power and discrimination against women in matters of inheritance, property ownership and other matters.

Traditional chiefs and kings were sidelined from the beginning of the negotiations over the new constitution, their leaders say. Patekile Holomisa has been president of the Congress of Traditional Leaders of South Africa (CONTRALESA) since 1990. “Traditional leaders wanted to participate in the constitutional negotiations as part of the mass democratic movement,” Holomisa says. “We expected the ANC to invite us. But they were not keen on our participating.” He continues, “A great deal of damage was done to the credibility of traditional leaders during colonialism and apartheid, but people forget that the earliest resistance to colonialism came from traditional leaders. We were tortured, killed and exiled if we refused to cooperate. The first political prisoners [imprisoned on] Robben Island were traditional leaders.”

While traditional leaders are among the most vocal, they are by no means alone in their criticism of several Constitutional Court rulings. Opposition political groups, religious leaders and others have joined traditional leaders in criticizing a number of Court rulings. Recent controversial decisions by the Court include outlawing the death penalty and other reforms that some charge have given criminals too many rights. Criticism has also been leveled at rulings that legalized abortion, and, most recently, allowed gay couples to marry.

“The greatest cleavage in our society is not race or class, but modernity versus the past.”

—Constitutional Court
Justice Kate O’Regan.

Photo: © Thomas Khosa

Constitutional Court Justice Kate O’Regan says she understands the concerns of traditional leaders. For example, she says, “They think the gay marriage decision is a nasty, Western, white plot. But the greatest cleavage in our society is not race or class, but modernity versus the past. It exists in many societies. It is not just an African thing. Many developed countries have this division as well.”

Retired Chief Justice Arthur Chaskalson says he always expected discontent from traditional leaders. “Traditional leaders were inevitably going to be unhappy. It was made clear at the outset that traditional laws and customs had to be subject to the Constitution.”

Some observers see storm clouds gathering just at the time when the Constitution has celebrated its tenth anniversary. Aubrey Matshiqi is Senior Associate for the Center for Policy Studies and a newspaper columnist. While Matshiqi doesn’t believe the Constitution is the result of “a nasty, Western, white plot,” he does feel the document was too heavily influenced by Western philosophies.

“In many ways,” Matshiqi says. “South Africa had been playing to the global galleries on the notion that our political settlement was a miracle. So the Constitution had to be a miracle too. Western liberal democracies place more emphasis on individuals. But African culture places the community at the center. Tension is developing between the two.”

Matshiqi compares the gathering storm he sees to the backlash that occurred following many of the liberal rulings made by the U.S. Supreme Court under Chief Justice Earl Warren. “Resistance to unpopular Court decisions could lead to a political mobilization against the courts, or even the Constitution itself,” he warns. “I am sure some of the opposition parties are looking at political opportunities to exploit anger at some of the Court decisions.”

The head of the Catholic Church in South Africa also warns of growing opposition to the Constitution as a result of the controversial rulings. “I think there will be a mobilization against the Court and the Constitution,” says Cardinal Wilfred Napier. “We are aping some Western ideas and taking them to the extreme. People are beginning to debate whether we were hoodwinked into believing in the goodness of those who drew up this Constitution. We didn’t see that there were also very strong special interest groups involved: gay rights proponents, pro-abortionists. The open hand was never shown.”

Those present at the creation, so to speak, deny that the Constitution was drafted by interest groups with hidden agendas or imposed by Western imperialists. Retired Chief Justice Chaskalson was an ANC member of the technical committee that negotiated the Constitution. In that capacity he participated in drafting an interim Constitution. In 1994, President Nelson Mandela appointed him the Court’s first Chief Justice. “At the time,” he says, “none of us thought we were creating ‘the most progressive constitution in the world.’ People all over the world were flooding us with advice. And we certainly read a lot of constitutions. But we wanted our own, authentic South African Constitution,” he declares. “Our history required a constitution that would protect people’s rights. Many of the Constitution’s provisions were drafted in response to the legal atrocities under apartheid, which had denied the right to counsel, allowed detention without charge or trial, and permitted torture and other atrocities.”

When observers proclaim South Africa’s Constitution “the most progressive in the world,” they are usually referring to the host of socioeconomic rights it outlines. Among these rights (in paraphrase) are:

The right to an environment that is not harmful to one’s health or well-being and to have the environment protected for the benefit of present and future generations.
The right to adequate housing.
The right to health care services, to sufficient food and water, and to social assistance if one is unable to support him/herself and his/her dependents.
The right to basic education, including adult education.
Specific children’s include the right to basic nutrition, shelter and health care; protection from maltreatment, neglect or abuse; the right to not be detained except as a measure of last resort; when detained, to be kept separately from detained persons over the age of 18; and the right to legal representation paid by the state.

Next page: During the constitutional negotiations, there were many who thought, given South Africa’s history—where the population was divided not only by race and ethnicity but also by class and economic status—it was critical for the nation’s new foundational document to address not just civil and political rights, but economic rights, as well.

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