The inauguration of the Constitutional Court in February 1995 fulfilled Mandela’s dream of constitutionalism. In his speech, he stressed what that dream meant in reality:
‘Constitutionalism means that no office and no institution can be higher than the law. The highest and the most humble in the land, all, without exception, owe allegiance to the same document, the same principles. It does not matter whether you are black or white, male or female, young or old; whether you speak Setswana or Afrikaans; whether you’re rich or poor or ride in a smart new car or walk barefoot; whether you wear a uniform or are locked up in a cell. We all have certain basic rights, and those fundamental rights are set out in the Constitution.
‘The authority of government comes from the people through the Constitution. Your tasks and responsibilities, as well as your power, come to you from the people through the Constitution. The people speak through the Constitution. The Constitution enables the multiple voices of the people to be heard in an organised, articulate, meaningful and principled manner. We trust that you will find the means through your judgments to speak directly to the people.
‘You are a new court in every way. The process whereby you were selected was new. When we look at you, we see for the first time the many dimensions of our rich and varied country. We see a multiplicity of backgrounds and life experiences. Your tasks are new. Your powers are new. We hope that, without abandoning the many sterling virtues of legal tradition, you will find a new way of expressing the great truths of your calling. You will be dealing with the rights of millions of ordinary people. The Constitution, which you will be serving, is the product of their sacrifice and belief. I am sure that I am speaking for all of them when I say that the basic reasons for your decisions should be spelt out in a language that all can understand.’32
The leading jurists of Mandela’s presidency had earned respect as defenders of justice before the advent of democracy. Michael Corbett, the first Chief Justice of democratic South Africa, was not meeting Mandela for the first time when he administered the oath at the president’s inauguration in May 1994. At a state banquet marking Corbett’s retirement two years later, Mandela took the opportunity to recount the circumstances of their meeting:
‘I first met Michael Corbett in unpromising circumstances some twenty-five years ago,’ he said. ‘I was a prisoner for life. He was a junior judge on a prison visit to Robben Island.
‘There was a particularly unpleasant conflict between warders and prisoners, arising from a brutal beating, and I was the prisoners’ spokesman.
‘I had no particular expectations of being believed or even listened to. The Commanding Officer tried to intimidate me. But not only did this young judge and his colleagues listen carefully to what I had to say. In my presence, Judge Corbett turned to the Commanding Officer and the Commissioner of Prisons, and protested sharply to the Commissioner over the behaviour of the Commanding Officer. Such courage and independence were rare.’
In his studies for his law degree in prison, Mandela ‘came from time to time upon the judgments of Michael Corbett. Their incisiveness reminded me of my earlier encounter with him. So did his dissent in 1979 in the case brought against the Minister of Prisons by my co-accused in the Rivonia Trial, Denis Goldberg.* Alone of the five Judges of Appeal, Michael Corbett held that the prison authorities were not entitled to apply the policy depriving prisoners of all access to news.’
This judgment, Mandela said, was ‘scholarly, meticulous and uncompromising in the primacy it gave to important rights …
‘It is to such actions by good men and women, like Michael Corbett, in every part of our society and of every political persuasion, that we owe our successful transition to democracy. One of the strengths of the new nation, which we are building, is that, by removing the causes of tension and conflict, it creates the space for such people to emerge and play their rightful role. It is in such conditions that the best that is in all of us can flourish. These are the circumstances that are producing a new generation of leaders for a prosperous and just society, at peace with itself.’33
* * *
In 1994, Mandela appointed Arthur Chaskalson, part of the defence team in the Rivonia Trial and a member of the ANC Constitutional Committee, as the first president of the Constitutional Court. Judge Ismail Mohamed succeeded Michael Corbett as Chief Justice in 1996. Characterised by Mandela as a man for all seasons, the new Chief Justice had been presented with a Byzantine set of measures by the apartheid state to prevent him from practising in various parts of the country.
‘In a career of some thirty-five years as an advocate,’ Mandela said, ‘Ismail Mohamed appeared in numerous trials on behalf of some of the leading figures in the liberation struggle. Like other members of the Johannesburg Bar … he helped lead the challenge in the courts to the injustice of apartheid. Because of his reputation for impartiality and firmness, he was accepted as co-chairperson of the multiparty constitutional negotiations … He warned us politicians gathered at those negotiations that, as judges, they would fearlessly uphold the Constitution.’
He made good on his threat, Mandela said. When Mandela was cited as first respondent in the case arising out of a constitutional challenge to proclamations Mandela had issued under a section of the Local Government Transition Act, Justice Mohamed and the majority of the Constitutional Court justices struck it down. In Mandela’s account, they had stated ‘that under our new constitutional dispensation, Parliament does not have supreme authority but is subject to our basic and supreme law, the Constitution. Our parliament, they reminded us, could not, even if it so willed, abdicate its responsibility as the lawmaker.’34
Mandela writes, ‘All these considerations, as important as they may be, should never be allowed to undermine our democratic Constitution which guarantees unqualified citizenship rights to all South Africans, irrespective of the ethnic group to which they belong. It has a Bill of Rights, to which a citizen can rely if any of his or her rights are threatened or violated. All of us, without exception, are called upon to respect that Constitution.
‘There are statutory bodies manned by strong and well qualified public figures who are totally independent of the government. They ensure that the Constitution and its provisions are respected by all citizens, irrespective of their position in government or society.
‘They are the Public Protector, National Director of Public Prosecutions, the Auditor General, the Human Rights Commission, the Truth and Reconciliation Commission and the Constitutional Court.’*
‘The apartheid regime had put law and order in disrepute. Human rights were ruthlessly suppressed. There was detention without trial, torture and murder of political activists, open vilification of Appeal Court judges who were independent and gave judgments against the regime, and the packing of the judiciary with conservative and pliant lawyers. The police, especially the security branch, were a law unto themselves. Because of this crude practice, and out of my own convictions, I exploited every opportunity to promote respect for law and order and for the judiciary.’35
While Mandela had the highest regard for the Constitution and personally embodied the qualities required for an ethical and courageous leadership style, he was mindful of the legacy of the past, especially when it concerned the judiciary. It was in the courts, when he ran a legal business with his partner, Tambo, in downtown Johannesburg, that he had seen abject human suffering and humiliation.
‘The legal profession and the judiciary in South Africa,’ he said at a banquet of the General Council of the Bar of South Africa in 2000, ‘have no perfect past. There have been failures and lost opportunities, institutional and individual. But it is also true that there have been women and men among South Africa’s lawyers, including its judges and advocates, who have been committed to the rule of law and to the achievement of a constitutional democracy. Some have paid a high price for this.
‘I believe that people of this kind should be honoured and I am proud to join you tonight to do so.
The Bar and the Bench are institutions which are not beyond criticism, but criticism serves no purpose if it is purely destructive and does not acknowledge the dedicated contributions which have been made. These have been made even at the worst times in our history.
‘I am glad to hear of the Bar’s own attempts to transform its membership and, in particular, to advance legal education; I am especially glad to hear of the creation tonight of the Pius Langa scholarships named after the illustrious Deputy President of our Constitutional Court and Chancellor of the University of Natal.’36
The road towards the creation of a legitimate and democratic state had started a long time ago, in the forgotten years of earlier struggles, and had wreaked havoc with the lives of millions. For Mandela, it was an achievement of a task he had set for himself as far back as May 1961. Albie Sachs – a veteran jurist and one of the first twelve judges of the Constitutional Court – reminisces about the period: ‘Nelson Mandela had gone underground and called for a general strike. Declaring that the majority of the people had not been consulted about South Africa becoming a Republic outside of the Commonwealth, he had combined a stay-away call with the demand that a national convention be held to draft a new constitution.’37
Thirty-five years later, the law, once a cruel instrument for exclusion and oppression, was finally transformed to serve all the people.
CHAPTER SEVEN
Parliament
If, in 1994, South Africa’s 39 million citizens had been subjected to a comprehensive survey about their impressions of Parliament, it is likely that there would have been as many views as there were respondents. The greatest trick pulled by the apartheid regime was fostering the perception that it revealed all, while in reality it concealed the finer, detailed workings of state machinery from the populace, leaving everyone – black and white – to deal with the effects, which were experienced to differing degrees and seemingly unconnected to the primary source. White people mostly went home satisfied with the government of the day while the black majority gnashed its collective teeth, cursing uhulumeni (‘government’ in isiZulu), the nebulous, featureless entity, much like the golem, which churned out laws that menaced their children. Now and then, the happenings in the imposing and inaccessible white buildings in the parliamentary precinct made headlines. Generally, though, no one took a great deal of notice.
It was a different matter on 24 May 1994, when Nelson Mandela stood up to give his first State of the Nation Address.
Earlier that day, the assembled crowds had been treated to a veritable splash of colour, from the different uniforms of mounted police and military escorts to the red carpet running from the Slave Lodge to the National Assembly Chamber, artistes that included young drum majorettes from nearby schools and an imbongi in traditional battle dress, his stentorian praise poem for Mandela eventually drowned out by the military brass band, which was in turn quietened by the fly-past by the South African Air Force, everything eventually being sealed by the booming twenty-one-gun salute.
But the insignia of different forces, flags and pennants had nothing on the splendid attire of the members of Parliament, which had spectators gawking from the public galleries at the procession of formal dress, conservative and outré, both Western and traditional. Mandela had decreed that with the dawn of democracy, the doors of Parliament were now open to all, thus his first State of the Nation Address became a celebration for all the people of South Africa. And they were here. Inside the chamber, from the galleries, which gave them a panoramic view of the proceedings below, ordinary men and women could see all those who had been at the forefront of the creation of the new South Africa. Some of the guests who had been separated by their various roles in the struggle – an activist awkward in formal dress, compatriots who survived an ambush and lived to tell the tale, or a freshly returned exile with a foreign spouse in tow – hugged one another as their eyes shone with tears.
Mandela first acknowledged Frene Ginwala, the speaker of Parliament, and other illustrious attendees. Then, glasses flashing, he continued:
‘The time will come when our nation will honour the memory of all the sons, the daughters, the mothers, the fathers, the youth and the children who, by their thoughts and deeds, gave us the right to assert with pride that we are South Africans, that we are Africans and that we are citizens of the world.
‘The certainties that come with age tell me that among these we shall find an Afrikaner woman who transcended a particular experience and became a South African, an African and a citizen of the world. Her name is Ingrid Jonker. She was both a poet and a South African. She was both an Afrikaner and an African. She was both an artist and a human being. In the midst of despair, she celebrated hope. Confronted by death, she asserted the beauty of life. In the dark days when all seemed hopeless in our country, when many refused to hear her resonant voice, she took her own life.
‘To her and others like her, we owe a debt to life itself. To her and others like her, we owe a commitment to the poor, the oppressed, the wretched and the despised. In the aftermath of the massacre at the anti-pass demonstration in Sharpeville she wrote that:
The child is not dead
the child lifts his fists against his mother
who shouts Afrika …
………………………………………………………
The child is not dead
not at Langa nor at Nyanga
nor at Orlando nor at Sharpeville
nor at the police post at Philippi
where he lies with a bullet through his brain …
………………………………………………………
the child is present at all assemblies and law-giving
the child peers through the windows of houses and into the hearts of mothers
this child who only wanted to play in the sun at Nyanga is everywhere
the child grown to a man treks through all Afrika
the child grown to a giant journeys over the whole world
Without a pass1
‘And in this glorious vision she instructs that our endeavours must be about the liberation of the woman, the emancipation of the man and the liberty of the child.’2
As powerful and resonant as the words might have been, it was still the case that South Africa’s first democratically elected parliament occupied the same buildings as the parliament of apartheid, where laws that had given rise to untold misery were enacted. Some of these considerations had prompted some traditional healers to ask for permission to ritually cleanse the chamber, a spiritual requirement that was instead achieved when Parliament held interfaith prayer services.
By dint of hard work, however, Mandela shaped Parliament into an institution that was oriented by the wishes of the people, the heartbeat of the Constitution. His vision was for a parliament that could enable a profound transformation of society and become a pre-eminent space for public debate. It was to be a place for all the people of South Africa, even those who might have been unwilling to embrace it at the beginning. Ginwala remembers Mandela telling her that the biggest challenge was that ‘our people are not used to being in Parliament; the public is not used to Parliament, so we must make sure that everybody, every political party, every South African, thinks it is their Parliament’.3
But if Parliament enacted laws, it did so under the constraints of a sovereign constitution, with the Constitutional Court being the final arbiter – a departure from the apartheid era when Parliament made oppressive laws at will. Even when Parliament sat to draw up the final constitution, its work had to be certified by the Constitutional Court. Cooperation between the parties in the legislature depended, awkwardly, on the ‘spirit of national unity’ alone rather than constitutional prescription. And although there had been changes to the institution, the ANC still faced hurdles, as it had no technical experience of parliamentary machinery, government or running the economy, which the opposition and the previous administration had in abundance.
However
, what the four hundred-odd new MPs did have in common was legitimacy. Each and every one of them had been elected by pro-portional representation, which replaced the segregated white, coloured and Indian chambers with a single National Assembly that represented all South Africans. Moreover, the system of proportional representation meant that Parliament became a truer microcosm of the country’s diversity than any other electoral system. It also spoke to the ANC’s concerns about a winner-takes-all or first-past-the-post approach, which Mandela had favoured until he was persuaded otherwise in discussions with both Essop Pahad and Penuell Maduna. The two men had been members of the ANC team drafting the part of the interim constitution that pertained to issues of representation and they were now drafting the final constitution. Pahad recalls:
We said, ‘We want to discuss this matter with you.’ He said, ‘I know, talk.’ So we took him through why we thought that the proportional system is the fairest in the world. He listened and asked many questions about accountability and so on. We said, ‘If you go for another system, we can get into a two-party system or, at best, a three-party system and we’re going to exclude parties like the PAC, whereas the proportional system is going to allow greater representation of parties in Parliament.’ He listened and asked questions and at the end said, ‘All right, I agree, but it doesn’t mean that this must be forever.’ We said, ‘Yes, it is left open in the constitution for us to change the system as long as it is broadly proportional.’4
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