media releases - Speech by Prof Kader Asmal at honorary doctorate gradution

The Constitutional Project

Speech by Professor Kader Asmal at the conferring of the honorary degree of Doctor of Laws by the University of South Africa on 12 April 2010 at the Z.K. Matthews Great Hall, UNISA, Pretoria

As the recipient of this singular honour it would be appropriate for me to pay tribute to the University of South Africa, its Chancellor and Vice Chancellor, its Council, staff and students. UNISA is an exceptional institution. Not only is it a South African national treasure, it has grown to become a leading African continental institution of higher learning. Your importance on the continent is reflected in the growing student numbers from beyond our borders, but also in the high academic regard with which UNISA is held on the African continent and beyond.

You provide opportunity and hope to tens of thousands of students who, for one reason or another, are unable to attend a residential university. You did so over 50 years ago when I combined school teaching with studying for an arts degree. (I never attended the graduation ceremony as it was racially segregated.) A few short years ago, UNISA provided a means by which South African political prisoners and exiled activists could satisfy their academic curiosity and reach their scholastic potential. More than this, UNISA provided the means by which future activists could study subjects which prepared them for leadership roles in the transitional and post-apartheid era.

Indeed, UNISA is an exemplar of an institution that has undergone profound changes and adaptation to remain relevant in the post-apartheid period. In so doing, it has established a welcome example that it is not just the bricks and mortar of institutions, but also the content and work of institutions that require rejuvenation to remain relevant.

As a country we have become skilled at erecting world-class structures, but perhaps less successful at ensuring these edifices have continuing purpose and relevance to the lives of all South Africans. This simple observation leads me to the topic of my short delivery today, the nature of our democratic order.

In a democracy political leaders come and go, governments are formed and are removed, parties secure power and are voted out of office. This is the rhythm and timbre of democratic government. Uncertainty and regular change may be good for government, but the same does not apply to constitutions. Indeed, the better the constitution, the less often it ought to be changed.

I would contend that the greatest national achievement of our liberation and transition to democracy was the crafting of a constitution and constitutional order that is held as legitimate and just domestically, and viewed internationally with some envy. Because it was actively negotiated, everyone’s needs were taken into account.

Our Constitution is not the obstacle to whatever cherished idea politicians wish to pursue, whether it is land reform or transformation. It is a native-hewed document, not imposed on us but negotiated by South Africans. Let me repeat, for the benefit of some of our leaders today, that it is a national document, the product of collective minds.

But something is now going worryingly wrong with our constitutional order and, in turn, with our democracy. For it simply does not matter how elegant our institutions of democracy are, if they are not cherished, invigorated and protected by all of us, politicians, jurists, academics, the media and the citizenry. It is not acceptable for public leaders to genuflect to constitutionalism while attacking it by stealth. Today I fear we are observing our constitutional order being chiselled away to the point where we risk losing sight of the founding principles and practices of our democracy. One can see it and hear it.

Yet it is the principles of our constitutional project and its core values which have in the past two decades saved us from what could have been cataclysmic events.

Many, on hearing the news of the murder of Eugene TerreBlanche, will have recalled the Easter weekend seventeen years ago when Chris Hani was slain. Both aroused deep-rooted fears, and could have been disastrous; yet they were very different events.

Hani’s murder was truly calamitous: a potential leader of a democratic South Africa cut down, never to see the fruition of a struggle he had helped win. Then, we seemed on a knife’s edge, as if there might be no containment of violence, as if every aggrieved force might be unleashed. But our leaders cautioned restraint, called for calm. If a giant had fallen, there were others to take up his load.

Now, there is no knife’s edge. No giant has fallen and there is no political conspiracy at play to undo our democracy and provoke widespread violence. It is altogether much more banal. A man was brutally slain in the course of a labour dispute, the brutality of his killing perhaps prompted by the brutality this man had long owned as his personal political ideology. Although threats of retaliation were initially made, they were quickly withdrawn. Good sense prevailed - though the cynic might hold that there aren’t the forces to make good on the threat: the AWB is a spent political force.

And yet if there is no apocalyptic frame for this murder, still its fact must worry us. Writing in the Makwanyane judgment, finding the death penalty cruel, inhuman and degrading and a violation of the right to life, Judge Chaskalson wrote: "It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected."

Chaskalson was writing about the Constitution and why a state should be willing to protect the rights of minorities but his reasoning should resonate in the manner of our treatment of each other: if TerreBlanche, of the worst among us, could live free in South Africa then it seemed that we might all reasonably expect the same.

Most of us will not be mourning the passing of this man, yet the scenes of jubilation and approbation that greeted his suspected killers outside the courthouse must unsettle us. So too, the remnants of the AWB thronged outside the courthouse, intent on provoking and intimidating.

And it is this – the politics of intimidation, of bullying – that seems so much today the style of our political engagement: a style, I am sorry to say, very much favoured by our political superiors.

The examples are plentiful: a police chief gotten up in military insignia, a presidential bodyguard runs amok, attacks on individual judges for not delivering favourable verdicts, academic freedom (the heart of life as an academic) dangerously dismissed as the vehicle for counter-revolutionaries; appointments to judicial and quasi-judicial offices that appear deliberately to change the nature of these organs; threats by the ANCYL against "gangsta journalists" for daring to report on the business interests of Julius Malema,

Let me turn for a minute to that young man, of whom it may be the less said the better, but who happens to be the lightning rod for much of this politics of intimidation. Asked over the weekend about an order by the judiciary – one of the three central branches of government – prohibiting the singing of the "Kill the Boer"’ song, he responded: "The order was granted by an untransformed judicial system, which is the same one that was operating during the apartheid system. It [the judiciary] was defeated." Attacks on our judiciary, and personalised attacks at that, are now standard notes in our political discourse and it should go without saying that these ad hominem attacks, from authorities within the ruling party, do little to inspire confidence in the constitutional project of co-operative governance that the ruling party as largest partner in this project is constitutionally enjoined to uphold.

And what of another dimension to these remarks, to which less attention has been paid - that they were made in Zimbabwe, after tribute had been paid to President Mugabe and ZANU-PF, without respect for the role of mediator that our government has assumed, trying to bring parties together to resolve the Zimbabwean crisis.

And what of the song? At present there is a court order in place which, like it or not, we must respect. I am not certain though that the song itself falls foul of South African law or that the law under which it is ostensibly prohibited is not itself constitutionally suspect. Many of us may think that the furore over the song is a rather hysterical overreaction; yet if it creates genuine fear among some South Africans, whether or not we believe that fear is well-founded, doesn’t that compel our leaders to exercise some reflection, issue some recognition of the fear caused and not require a court order before doing so?

The politics of fear, of intimidation, is anathema to our constitutional project. By "constitutional project" I refer to something broader than the constitution’s text. What I want to suggest tonight is, I realise, somewhat paradoxical and perhaps even counterintuitive, given that so many in South Africa go without even the most basic necessities. But here it is: that the constitution is sometimes too much and sometimes too little for what is required of the constitutional project.

Take the song. Even assuming it is protected under our constitutional guarantee of freedom of expression – that anyone singing it is well within their rights to do so -- is it wise for the governing party to endorse it when it so obviously breeds fear, however unfounded we believe that fear may be? If we define the constitutional project as the realisation of a politics in which all South Africans believe that their lives and aspirations are best secured under a constitutional democracy, overseen not only by a judiciary but by the executive and legislature too, then surely we should not insist on the realisation of the outer reaches of the rights. Here, in these specific circumstances, it may appear that the Constitution may offer too much.

But when is it too little? I spoke earlier of co-operative governance – a central, animating concept of our constitution and the constitutional project – and made reference to the extent it was undermined by persons in powerful political positions proclaiming that they would refuse to adhere to court rulings. These are pretty unambiguous instances in which co-operative governance is compromised. But the undermining of the government’s role as mediator in Zimbabwe, the low-level executive decision-making steering our police force towards remilitarisation, these are less clear illustrations of violations of co-operative governance principles. Because co-operative governance is a broad and fairly amorphous concept, and although the Constitution enumerates some fairly terse principles of co-operative governance, the constitutional injunctions alone cannot be exhaustive of what the concept means.

I am not advocating amendments to the Constitution. What I am advocating is both easier and harder: what the constitutional project requires is discipline, measure, reflection, depth, self-restraint and forbearance on the part of our political leaders. And I don’t mean this only within the ruling party. The carping, scolding tone that is so often the opposition is also lacking in these qualities.

The young leaders who claim the mantle of the revolution often seem to lack the qualities of reflection, of restraint, of control. And in their fervour, they would likely claim that moderation, measure and reflection are the very opposite of the revolutionary impulse. But they would be wrong. There are none who embody these qualities – none who knew what it was to be restrained, disciplined, measured – so much as those who led the struggle to defeat apartheid and usher in a democratic constitutional order.

For all the sense of polarisation that pervades South Africa right now, there is nonetheless something positive to be taken from recent events. TerreBlanche’s murder triggered a collective memory, not a polarised one – the killing of Chris Hani and its response, and the forbearance and discipline and restraint by those who had every reason to want to avenge his death. Outside of the framework of our Constitution – the interim Constitution was still a year from being enacted – it was nonetheless one of the fundamental moments of our constitutional project. It established a precedent of greatness, a measure by which those who swore vengeance in the aftermath of the TerreBlanche killing could only be diminished. Its memory reminds us of the keynotes of our constitutional project: of grace, of generosity, of measure, of dignity, of depth and of discipline.

NO grace, No reticence, no measure, no dignity, no depth, no limitation is accepted.

Recently, a researcher collared me at a cocktail party and asked, "Professor Asmal, where is the new generation of you? People who care for and are prepared to speak out in protection of our constitution and its rights?" I told him that there are such people out there and that they are coming through into public life and I know that some are counted amongst you. But the researcher has a point. In the past our youth was often in the van of our struggle, stoking our debates and changing our discourse, but today, I see too many youth chasing material wealth and bling, without giving questions of social justice a second thought. Indeed increasingly, political activism is becoming synonymous with or an excuse for personal position, access and wealth. This is corruption of the most corrosive kind and must be tackled at root.

So, before taking my leave of you, I want to issue a challenge. A call to action, if you like. My challenge is for you, staff, students and graduands to commit yourselves to move from theory to praxis in this next and most exciting phase of your lives. Theory without practical application may have academic or intellectual merit, but too often the benefit of such excellence is confined to the white-coated elites of our country’s laboratories. Conversely, actions and behaviour without social thought in the pursuit of material gain can lead to crass selfishness and avarice. Thus I challenge you not just as an academic who has benefited from and dedicated his life to the pursuit of excellence, nor as a former Minister of Education, I implore you as a fellow South African and as a fellow democrat, to embrace our constitutional dispensation, cloak yourselves in it, invigorate it, protect it, and celebrate it. The success and growth of our constitutional order is in your hands.

This is the constitutional project we should all be involved with. Then South Africa will flourish. And if South Africa flourishes, then UNISA will flourish.