OPINION: I ask you, why are some so irritated with my opinion piece? Until all daggers, some agonizingly blunt, are drawn, and some have already assumed my head must go to the guillotine in the narrowness of mind, writes Lindiwe Sisulu.
Dear Cadre Lamola.
You have taken the unusual step of addressing me, a colleague, in an open letter, something unheard of in the tradition of our movement, as far as I know. This appears alarming since it seems to be a follow-up of the public statement issued by your department, which was all part of an equally unusual and disturbingly vicious public castigation of me since my attempt to draw public attention to one of the most fundamental issues South Africans should be discussing.
So let me step into that unprecedented space and try to respond.
Let me be upfront about my point of departure. The South African Constitution is a human-made, historically contextualized document. That contextualization cannot escape the reality and umwelt of a CODESA 1 and 2 that defines the proverbial womb of the Constitution. In this sense, the Constitution makes for a ‘settlement agreement’.
Concerning our laws and their interpretation, it certainly has supreme authority, and it is indeed a remarkable and impressively progressive document in many ways. It does set high standards for our democratic life together. But it is not Holy Scripture. Rather than seeing it as an untouchable, irreproachable holy relic, I see it as a living document, evolving with our own development. As such, it is open to discussion, debate, and critique.
Hopefully, a better understanding of justice, responding to the living, concrete situations of the South African people as we perpetually assess our progress to an equal society. The courts protect and promote the values espoused in the Constitution, and they will use the power their authority affords them in undying efforts to make those values part of our way of life, “habits of the heart,” as Prof. Robert Bellah pleaded for the inculcations of those values in American life.But courts and judges are not the Constitution’s owners.
They are its keepers, not its gatekeepers, allowing only some into those hallowed spaces of protection, dignity, and respect. In that sense, if the Constitution does not become the living, embrace the experience of our people as a whole.
However, especially the poor, the disenfranchised, the marginalized, and the excluded, it has failed in its primary function regardless of how it may offend us to accept such.
Contrary to what you posit, debates and discussions around the Constitution are not a recent occurrence, “heightened” by the words in my article. I find this notion as DCJ Zondo also erroneously assumed when he said, “A member of parliament and a member of the executive should wake up one morning without any facts just write an article and insults all African judges from the highest court in the land.”
It is simply not true that I woke up one morning and wrote this article. This article is the fulcrum of my thought provocation and pensive reflections over an elongated period as we sojourn in a democratic era.
The debates concerning the efficacy, practicality, and functionalities of the Constitution as measurable in its service to the majority have been raging in intellectual circles and public discussions for some time now. Sometimes we must really talk about the difference between “debates” and “attacks .”
There is either a deliberate or wilful ignorant prevalence to conflate and confuse these two for salacious and expedient purposes. May I enquire from you and all those who hold this view of an attack? Who decides what is what? You? The media? I have been under a deluge of insults, aspersions, and ad-hominem attacks all week. That by itself was not the first, Yet you have no word to say about that.
My own views have not been secret either.
Last year, I was privileged to speak to the National Association of Democratic Lawyers, that sterling organization that has done such unforgettable work during our struggle.
This is what I said then: “The Constitution of South Africa also represents an attempt to constitutionalize all the hopes, fears, and conflicts of its democratic transition. Until now, we have had ample time to examine whether our hopes, fears, and aspirations are adequately captured in the Constitution.
This is something that we all need to engage to ensure that our Constitution is a truly living document and embodies the aspirations of every phase of our development.
Since this is the instrument against which we test that the Government is based on the people’s will, that every citizen is equally protected, these are the democratic values that constantly need to be tested and against which we should measure how far we have gone as a democracy. Equality before the law remains a concept that has not taken root in our democracy.
It is almost predictable that jails will be full of black people, the disadvantaged, and the down-trodden. Justice remains the privilege of those who can afford it.” I stand by that.
I do believe that our Constitution far too often serves the few, the powerful, and the well-connected. It cannot be that resources become the determining factor between justice and injustice, right and wrong, moral and immoral. In this regard, I bring to your attention the ongoing case of Vodacom and Mr Nkosana Makate.
A black young man whose invention aided Vodacom’s wealth, had to rely on aid to make his case in the Constitutional Court. The matter is still not settled and remains ongoing. I cite this here not in pre-empting an outcome but to highlight the challenge the poor have to take on the wealthy and to find rightful justice.
That situation needs vigorous debate and firm correction. In that endeavour, I find myself in good company. Prof Magobe Ben Ramose, in a scholarly article published in 2014, seriously doubts whether the demands for justice he recognizes in Ubuntu are a serious driving force of the Constitution. “Ubuntu legal philosophy,” writes Ramose, “is by definition antithetical to the principle of constitutional supremacy adopted as the legal foundation of South Africa.”
Such views cause heated but necessary debate.
Similarly, the late Prof Sampie Terreblanche, hated among establishment circles for his progressive, pro-poor, anti-capitalist views, has offered strong arguments. The negotiated settlement, of which the Constitution is proudly claimed as its most celebrated outcome, he argues, stands in the shadow of what Terreblanche calls “an elite conspiracy” that not only exonerated the white corporations and the white citizens from the part they played in the exploitation of deprivation of Black people.
It also enabled whites to transfer all their accumulated wealth – their social and physical wealth, which was accumulated undeservedly – almost intact into the “new South Africa.”
“No wonder then,” Ramose writes, falling in with Terreblanche’s analysis, “that the property clause is the longest in the South African Constitution.” So, Ramose concludes, constitutional supremacy was no more than a tactic “to defend wealth gained and accumulated based on unjust acquisition. Considerations of Ubuntu, even of the word itself, were more than remote in the hatching of this wealth-protecting mechanism.”
This means, by the way, that claiming “Ubuntu” as a “foundational and universal principle” hardly makes the Constitution one that breathes the spirit of Africa in all it contemplates and does.
This “wealth-protecting” mechanism, so carefully secured in our Constitution in Article 25, that “longest clause” in the Constitution, is not thereby accident. No wonder when we finally got to it, it took us almost a year to reach the correct conclusion, and still, there is no genuine enthusiasm to see this through.
We are still stuck with vague intent, not driven by firm resolve. And you make this clear: we are captivated by imprecise ideas of “land reform,” not by determining plans for land redistribution.
That is because Article 25 has claimed a sacred space in the Constitution. You seek to exonerate the Constitution by quoting what everyone has known for such a long time: what prohibits us from doing this fundamental thing, you say, is “poor implementation of policy, budget allocation for land reform, the lack of institutional and political support.” That means at least two things, however.
One, it means that whichever way you frame this, all this “lack” of political will is because Article 25 stands in the way.
But two, read from a different perspective if you blame political will and lack of institutional support, does that not mean blatant disregard for the Constitution that you hold so sacred?
However, that raises the question: why are you so angry at me?
Should you not be angry with those tasked with carrying out ANC resolutions and parliamentary decisions regarding the land issue? Should you not be shouting from the rooftops at those who have such disdain for the Constitution that they can drag their feet, “stall” the process as long as they deem fit, pour disdain on what South Africa’s people deserve and what they struggled for?
But as Prof Ramose has pointed out, and what our people are openly discussing, and that with growing, and rightful anger, is that we are not moving on the land issue because that clause is in the Constitution at the behest, and for the protection of those who want to protect their ill-gotten wealth, and who guarantee wealth for those who continue this protection.
But you can’t, you see, because this truth exposes and hurts too much, and those “stallers” have an excuse: that “longest clause” that stands in their way. But this circular argumentation has now caught up with you. Ben Ramose writes what our people have been asking openly for a long time: “A miracle by whom and for whose benefit”?
And it is on this point that your bland assertion that “the Constitution is largely based on the Freedom Charter” falls apart. That is a frivolous equation. The Freedom Charter’s ringing first sentences, that “South Africa belongs to all who live in it, black and white,” is not an admission that the land belongs to whites who will decide – as they did during colonialism and apartheid – what small, insignificant portions should be allotted to Blacks. It is the other way around: the Blacks are willing to share the land with whites because the indigenous peoples are the landowners.
It is a political magnanimity white power has consistently ignored, a generosity of spirit that some blacks are now exploiting.
But for whose benefit? It is this distortion of the intentions of the Freedom Charter, the deliberate ensconcing of continuing land theft under the guise of “private property”, the “stalling” and the lack of political will, allocating of budget, and institutional delays, what our young people call “selling out”. And no, it is not “the system” or “the institution”.
Systems and institutions are designed and run by people. And it is people from within our communities who, making common cause with our oppressors, stood in the way of our freedom in the struggle then.
They are standing in the form of total economic freedom and the restoration of our historic dignity now. It is these people the great Malcolm X called “house negroes”.
That, as Biko recognized, is the person whose colonized mind is the most potent weapon of the oppressor. That kind of person is the person who denies the people’s legitimate expectations based on historical reality, justice, and restoration of dignity. If I deny my people their historic rights, if I espouse policies that keep them impoverished if I serve the will of the white capitalist class, shall I be angry if my people call me a “house negro?”
This means that it is not freedom of expression and criticism that “destroy or paralyze important arms of the state,” as you suggest. Instead, those entrusted with power by the people who refuse to use that power to serve the people, to give the people not so much what they need, but what they deserve. Those who believe their power derives from those with wealth who promise them wealth, power, and status as rewards.
It is that kind of person who wants to make us believe that a neo-liberal capitalist economy is what South Africa needs, that it is able to erase the economic disaster caused by colonialism and apartheid and guarantee “equality”.
The evidence is as straightforward as it is devastating: South Africa is the most unequal society on earth. Yet you blithely assert that the Constitution needs no critique, and the judges are above all critique because “judgements of our courts have brought about a much more equal society”.
What I am trying to do, is to make us all see that, at this time of celebration of the adoption of South Africa’s Constitution, we have come to the point of serious and honest reflection: where do we come from, where are we, and where are we going? And perhaps the voices of our youth will help us here.
Young Siya Khumalo writes something about the ANC I find painful, yet will not run away from because if we listen, it will genuinely help us stop, think, reconsider, turn, and find another way.
“While it is true that prior to democracy, the party mobilized masses and inspired masses to make epic sacrifices for South Africa’s political liberation, it’s not true that the negotiated settlement was the liberation those sacrifices always looked forward to. The resultant Constitution was patently not the Freedom Charter.”
A younger generation asks us, who birthed this Constitution some very challenging questions. These include: Is there nothing peculiar if not ominous for us who laboured for its existence to fail in not questioning how and why former oppressors the world over was never as pleased with the post-dispossession outcome than in South Africa – as a constituency – In whose interest cognisant of that historical oppression are the oppressors’ celebration of this Constitution?
They ask us to critically engage why former oppressors are so elated with this particular Constitution and why the beneficiaries of colonial and apartheid systems are prepared to kill for it? These questions are not lightweight ones.
They are not simple, but they necessitate deep introspection. We have too often seen how a particular group of high-heeled foundations in our country exercise the luxury of what they want to engage and whom they wish to demonize. This is when their hypocritical silence on the fundamental issues of land ownership, radical economic transformation, and racist attacks on blacks [as we saw with the Phoenix massacre] is deafening.
Addressing the NADEL conference, I said it would be naive to assume that the Constitution will self-actualize. Its vision and aspirations will be realized without active citizenry as drivers and pillars of social and institutional reforms. So it is clear that we all have much work to do, Comrade Lamola, and I, for one, will not shirk from it. So it is likely that you will hear my voice again, however much it might irk you, as long as it remains true to those whose voices are stifled, suppressed, and ignored.
I ask you, why are some so irritated with my opinion piece? Until all daggers, some agonizingly blunt, are drawn, and some have already assumed my head must go to the guillotine in the narrowness of mind. These convictions I hold dear did not arise momentarily but are borne from more than 50 years of conscious choices to do what is right regardless of at a what cost.
That same conviction now inspires me to probe through being public, and I remain less perturbed by the threats of being fired from a Cabinet since serving in the Cabinet I was not born with and remained a privilege.
But if I am asked to betray my convictions to sit at the Cabinet’s table, I may not be the right person to serve. The African National Congress, in both its best and worst times, instilled in me and many others to take a stand regardless of the consequences; it’s a conviction I stand by and, under apartheid, was willing to die for.
In the words of Chairman Mao Zedong in February 1957, “Letting a hundred flowers blossom and a hundred schools of thought contend is the policy for promoting progress in the arts and the sciences and a flourishing socialist culture in our land.”
Can we let the people engage freely, less in fear of the Constitution’s fragility and less intimidated by its tender-timidity as advanced by the self-appointed custodians?
The actions in denying freedom of speech of the latter violate the very document they claim.
* Lindiwe Sisulu is the Minister of Tourism.