The Road to Freedom – George Bizos

Freedom Month Lecture Series, University of the Witwatersrand

Speech by: Advocate George Bizos SC

(Counsel, Legal Resources Centre)

assisted by Byron Jaffe, Monika Juengst-Miechzkowska and Avani Singh (Legal Resources Centre)

presented at the University of the Witwaterstrand, hosted by the Department of Arts and Culture

21 April 2016

Introduction

The progress towards democracy in South Africa can only be described as one of triumph.  We have broken from the shackles of the apartheid era, and have the Constitution of the Republic of South Africa, 1996 as the high water mark of our constitutional dispensation.  At the outset, I must state that I refuse to accept the proposition of those who say that nothing has changed.  A simple example of this can be seen at my office everyday, where all of us, of varied races and backgrounds, eat lunch together in the kitchen; this is a far cry from my early days at the Bar, where I had to fight to be allowed simply to share chambers with Advocate Duma Nokwe because of the difference in the colour of our skin.  Indeed, this evening, at the kind invitation of the Department of Arts and Culture for which I am grateful, I have the opportunity to share with all of you from so many walks of life my reflections about our road to freedom, something that would have been impossible a few decades ago.

In refuting the view that nothing has changed, I must also hasten to add that we of course have a long way still to go in achieving our constitutional ideals.  We have perhaps never before in our post-1994 democracy been confronted as starkly with the realities of inequality as we were with the recent student protests.  South Africa remains one of the most unequal societies in the world, and the struggle to remedy that continues.

The meaning of freedom for me still finds its point of departure in the opening paragraphs of the Freedom Charter of 1955.  It stated powerfully that:

We, the People of South Africa, declare for all our country and the world to know:

that South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of all the people;

that our people have been robbed of their birthright to land, liberty and peace by a form of government founded on injustice and inequality;

that our country will never be prosperous or free until all our people live in brotherhood, enjoying equal rights and opportunities;

that only a democratic state, based on the will of all the people, can secure to all their birthright without distinction of colour, race, sex or belief;

And therefore, we, the people of South Africa, black and white together equals, countrymen and brothers adopt this Freedom Charter;

And we pledge ourselves to strive together, sparing neither strength nor courage, until the democratic changes here set out have been won.

Have the changes set out in the Freedom Charter yet been won?  Certainly, we have the frameworks in place to make this possible, but the difficult questions arise when we look at the lived experiences of the majority of our people.  And, if this change has not yet been fully realised, are we again prepared to re-commit to sparing neither strength nor courage until it has been won?

We were beautifully naïve when we began on this road to freedom, cautiously optimistic but almost too afraid to truly imagine the potential that a democratic South Africa could hold.  The end goals of our efforts were wide spread, spanning the nation of South Africa and its diverse people.  My reflections tonight come from the experience of one who lived through the early days of freedom, but who continues through my work to at the Legal Resources Centre to grapple with the ongoing struggles.  I think of the birth and growth of freedom in South Africa as being not unlike the way one might reminisce about a beloved child: they did not always run, but they crawled, fell, and even cried; however, because they were their kin by blood, ultimately rose up tall.

A history of scars and tragedies

Ask any South African about historical heroes, and you would receive a plethora of names who served as our guiding lights into the democratic era; in their wisdom, they saw the start of the fall of colonialism as a turning point in the realisation of the ideals of freedom and equality for all.  For many, these were ideals pursued not knowing whether the realisation would materialise in their lifetimes, but with a certainty that they were worth pursuing nonetheless.

We saw a world where the territorial gains by colonialists were being dissolved; where the right to self-determination, free of want and fear, was being realised; trade barriers were being lowered; and aggressor nations were being disarmed.  In this way, one began to see a version of South Africa that had not truly been imagined before.

But the fall of apartheid was a complicated beast.  There was no overt aggressor state, but rather than aggressive controller.  In the face of this consistent oppression, the anti-apartheid movements – diverse as they may have been, from political parties such as the ANC to workers movements, women’s movements and youth movements – found common cause in the concerted ideal of freedom for all in South Africa.

The cost and the losses that came in realising this freedom cannot be gainsaid.  From the Treason Trial, the student uprisings, the death of activists like Steve Biko and Ahmed Timol in police detention, the hazardous activities undertaken by the military wings – suffice it to say that the suffering was immense.  It is difficult to comprehend the extent and depth of the personal suffering that was experienced.  When I think, for example, of the death of Steve Biko in custody and the fear that more members would suffer the same fate, I remain awe-struck by the continued and concerted efforts of so many people across the country who overcame their fears to pursue the cause.  I must add, though, that in recalling the student uprisings, and reading the recent comparisons with the student movements that we have seen over the last year, I can only pray that we never again see innocent blood being spilled of those pursuing their right to receive a decent education.

Many people continue to carry with them the pain and scars of those days.  When freedom ultimately came, it was not a victory for a particular movement; it was for the people as a whole.  By 1985, we could almost taste freedom, but there was still a long and difficult part ahead before it could be achieved.  The tide may have turned slowly, but it ultimately did turn.

Amidst the pain of those dark days, though, were moments of unparalleled joy.  The release of former President Nelson Mandela, for instance, comes to mind.  The memory of him standing before the world, a free man smiling with his arms raised high – nothing can compare to that moment.  On the one hand, I relived some of the darkest times of South Africa’s history in that moment then and there; but on the other, I realised too that many of the struggles, the violence and the heartache were behind us, and what lay ahead was for us to get down to the business of running a free and democratic country.  The challenge was daunting, but thrilling.

A Constitution for all

The Constitution and I have had a long friendship. As some of you may know, I participated in the negotiation and drafting of the Constitution, and was a member of the team of lawyers who argued for its certification before the Constitutional Court. For many years, I have been involved in constitutional litigation, and today still work in the Constitutional Litigation Unit of the Legal Resources Centre. As with all good friendships, I have defended it; I have challenged it; and I have tested its limits and bounds. However, to this day, I continue to stand by it and believe in the potential that it holds.

The Constitution was approved in May 1996 by the National Assembly by an overwhelming majority: 421 of the 435 members voted in favour of it; only 2 opposed; and the other 12 abstained. This, however, was only the first hurdle. It still needed to be certified by the Constitutional Court as being in line with the 34 constitutional principles contained in the Interim Constitution.[1] This was a novel approach, and we were uncertain of what to expect.

The five of us representing the Constitutional Assembly – a team which included Advocate Trengrove SC and Advocate Moerane SC – drafted more than 250 pages of argument and schedules that we hoped would show conclusively that the proposed constitution complied with these principles. The debate in the courtroom was heated and robust, and I remember reading the placards of a leading Johannesburg newspaper after the hearing which said “Bizos clashes with judges”. I found the characterisation jarring, preferring to think of it as a necessary consequence of the job. But regardless, this so-called clash was a critical process to test the strength and resilience of what was to become our Constitution.

When it came to certification, the Constitutional Court was by no means unaware of the gravity of the task before it. As the Court stated in its judgment, “we were mindful, during both the previous deliberations and again now, that the finality of certification demanded and demands we make assurance doubly sure”.[2] At the hearing, Justice Goldstone commented that a future Constitutional Court “sitting in ten or three hundred years’ time, would have to refer to the constitutional principles. They do not disappear. They would be a primary source of interpretation” – to which I responded, “[e]ven in a deep freeze, they would be there forever”.

We weren’t successful in our first attempt at certification, but the Court was satisfied following the second hearing that the 34 constitutional principles had been met, and certified the amended text which was signed by President Mandela a few days later on 4 December 1996.[3]

While it is my hope that the principles and values underpinning the Constitution are never allowed to wane, the Constitution itself is not necessarily cast in stone. It should, and must, be given the space to evolve naturally in line with society’s evolution. This is clear from the Constitution itself, which allows for its own amendment, a matter which I will return to again shortly. In my biography, Odyssey to Freedom, I began the chapter on the Constitution with a quote from former President Nelson Mandela, in which he says in reference to the Constitution that:[4]

[It] is a living document. Our understanding of its requirements will and must adapt over time. But the fundamental principles are and must be unchanging. Full understanding of how and why those principles were adopted will help us to ensure that we remain true to the solemn undertakings which we have made to each other and to those who will follow us.

I have said many times that we must respect, but not blame, the Constitution.  It is for us to give life to it, and ensure that it achieves what it sets out to do.

Reconciling with history, truthfully

The Epilogue to the Interim Constitution states that:

The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles and a legacy of hatred, fear, guilt and revenge.

These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for Ubuntu but not for victimization.

Many ask whether the Truth and Reconciliation Commission did – or ever could have – truly achieved reconciliation in the face of all the struggles that the people of South Africa had endured.  Of course, this is exacerbated by the fact that there are many who still do not have land and resources, and continue to be frustrated in the realisation of their rights.  As former President Thabo Mbeki has explained:[5]

Within the ANC the cry was ‘to catch the bastards and hang them’.  But we realised that you could not simultaneously prepare for a peaceful transition.  If we had not taken this route I don’t know where the country would have been today.

And so, we made peace.  We acknowledged that truth telling and a process of realising rights was better than a punitive one.  Looking at you today, I have a profound sense of pride at what we as a country were able to achieve.  The road to reconciliation was cobbled together with aspirations, compromises, and an inevitable balancing of tensions between the idealists and the skeptics; for those of us intimately involved in the process, what kept us on this road was the belief that the future of our democratic South Africa depended on it.

So who were these people who I am so nostalgic for, which I should say can severely alter whatever can be understood in the present?  They weren’t all exceptions to their background, skin colour or privilege.  If we see them by the current categories we hold for ourselves, we fail to see what they went through as individuals, even collectives. In order to understand the past, to hold onto hope for the future, we have to delve into the idea of universal sufferage.  I relate this to my time on the TRC primarily because, to my knowledge, it was the first commission of its kind that was empowered to grant individual amnesty.  In fulfillment of its truth-seeking mandate, it was given powers of subpoena and search and seizure.  Of critical importance, it was made open to the public and the media to ensure transparency and that it was accountable to all South Africans.

There is a reason why we call it a rainbow state; we see colours on our skin, red, white, tan, black, high above the ground, directly on the ground, even as a similar group, each has been burnt under the same sun.  In this same way, just as the sun has revolved around South Africa many a time, the best way to understand the present through wholly understanding and acknowledging the past in an effort to move forward.  The individual’s historical suffering reveals the most in this way, which will lead us to how we can maintain hope and deliverance from the painful truths we find each day.

The present, as described by the scars from the past

It is easy to say that from our democratic experiment that has remained fairly stable since 1994, this has brought us closer towards fully evolving from apartheid.  But as I said before, the full history of the toddler learning to walk depicts its tumbles and crawls.  If we are to understand ourselves fully, to distance ourselves from the criticisms we bring upon ourselves and our government, and to better ourselves in the most natural way possible, we must note our pitfalls.

The most obvious might be the fact that there still are remnants of apartness, largely driven by economic disparity.  According to an Economist report in 1994, the unemployment rate was 13%, at the time considered to be the worst; this, sadly, has increased further over the intervening twenty years, and remains one of the most significant challenges facing South Africa today.  According to reports, half of South Africans under the age of 24 looking for a job are unable to find one; and of those who have jobs, a third earns less than $2 a day.  We still see economic disparity drawn directly along racial lines, with 62% of black people living below the poverty line.

This must change if we are to give effect to the fundamental values contained in our Constitution, most importantly that of ubuntu. As our Constitutional Court stated in Dikoko v Mokhatla:[6]

In our constitutional democracy the basic constitutional value of human dignity relates closely to ubuntu or botho, an idea based on deep respect for the humanity of another. Traditional law and culture have long considered one of the principal objectives of the law to be the restoration of harmonious human and social relationships where they have been ruptured by an infraction of community norms.”

If we accept the values of ubuntu, and the fact that each of our humanity is wrapped up in that of others, then we cannot truly live a dignified life until this is enjoyed by all in our country.

The inclusion of justiciable socio-economic rights in the Constitution was a significant milestone, subject to the qualification of progressive realisation and availability of resources.  The goal requires the state to improve the enjoyment of socio-economic rights to the maximum extent possible, even in the face of resource constraints.[7]  But how does one reconcile the understanding of available resources in the face of the rampant corruption that we have seen to take place?  We are entitled, as we were promised, to demand openness, transparency and accountability from all, even those in the highest echelons of government, if we are to enjoy the ideals that were so hard won.

Look back on the path you have taken, but don’t only use your eyes to see

I understand what it means to be young and restless.  I understand the enthusiasm, the need for quick change and the want to leave behind a legacy.  We have, I hope, shared aspirations to see our beautiful country flourish.  I remember when I was at university, a lecturer told my class to look to the left and look to the right, and know that of the three, only one person would remain by the end of the course – and that if you were a woman, you shouldn’t even bother.  We know, thank goodness, that it is no longer the case, and again I remind you of how far we have come on this path to freedom.

The path to freedom may lead in many different directions, but we must not falter as we continue this march.  As I have already said, we must demand accountability and transparency.  We must insist that all levels of government perform its duties to the people of South Africa, from abiding by court orders, effectively rolling out social assistance, and implementing recommendations of commissions of inquiry such as that of the TRC and Marikana.  We must ensure that civil society organisations and activists are fiercely protected, and we must share a mutual outrage at instances such as the killing of the anti-mining activist, Bazooka Radebe, in the Xolobeni community in the Eastern Cape.

Yesterday, I was deeply honoured to receive the Freedom of the City award from the City of Johannesburg.  I am pleased to tell you that I am now what is known as a “Freeman”.  But in having this honour bestowed on me, I realise that this is trite, for I – together with all of you – have enjoyed two decades of freedom.  During the TRC, in reliving some of the darkest moment in South Africa’s history, we remained convinced that it was through this truth-telling and a full understanding of the past, no matter what the circumstances, that we as South Africans undoubtedly have hope for the future.  I still believe this to be true.

Almost exactly a year ago, at a similar university gathering, I issued a challenge to the audience, which I issue to you too today.  The challenge is this: I want you to think of one way in which you can advance the values of our Constitution in your community. Keep track of it; record your progress; and whenever you believe you have achieved what you set out to do, challenge yourself to do something more. Do that in the name of our Constitution and the aims and values that underpin it, and be unrelenting in your pursuit of this.

I am reminded of the words of Vaclav Havel, the former President of the Czech and Slovak Federal Republic, who said:[8]

I am not an optimist because I am not sure that everything ends well, nor am I a pessimist because I am not sure that everything ends badly.  I just carry hope in my heart.  Hope is not a feeling of certainty that everything ends well.  Hope is just a feeling that life and work have a meaning.  It is not an estimate of the state of the world.  It is something that you either have or you don’t, regardless of the state of the world that surrounds you.  It is a dimension of human existence.

Come what may, let us never lose sight of the road we have travelled to enjoy this freedom, and the hope that we continue for the full realisation of our constitutional ideals.

Thank you.

[1] Interim Constitution Act 200 of 1993.

[2] Certification of the Amended Text of the Constitution of the Republic of South Africa1997 (2) SA 97 (CC).

[3] Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC); Certification of the Amended Text of the Constitution of the Republic of South Africa (as above).

[4] G Bizos Odyssey to freedom (2007) at p 541.

[5] Quoted in Boraine “A country unmasked” (2000) at p 13.

[6] 2006 (6) SA 235 (CC) at para 68.

[7] Chenwi, Lillian; “Unpacking “progressive realization”, its relation to resources, minimum core and reasonableness, and some methodological considerations for assessing compliance”; De Jure 46 Volume 3, 2013, pp 742

[8] Quoted in Boraine “A country unmasked” (2000) at p 2.

16 Days: Facing imprisonment in Malawi

During 16 Days of Activism for No Violence against Women and Children, the Legal Resources Centre will be sharing the stories of survivors of gender based violence who fled their countries to seek asylum in South Africa. Many women, children and sexual and gender non-conforming persons endure horrific hardship, sexual persecution, assault, rape and discrimination in their countries. When they arrive in South Africa their hardship does not end. Some women experience sexual persecution while crossing the border, while others may experience oppression, intolerance and discrimination while trying to create a life in South Africa. When they enter the asylum seeker process, they often endure further persecution. These are their stories.

Facing imprisonment in Malawi

M is from Malawi and from an early age she knew that she did not conform to the sexual and gender norms of her community. In 2006, she started a romantic relationship with a woman but they had to keep their relationship secret. In Malawi, homosexuality is criminalised by the law and, in her community, being homosexual can lead to harassment and arrest. Although she was able to keep her relationship secret for 5 years, intimate photos were revealed on social media in her community.

She was harassed and forced to leave her job and home. The harassment continued and her family rejected her. M was unable to report these crimes because she feared being arrested because of her sexual orientation.

M was attacked one late afternoon by a group of men who tried to rape her. They justified their behaviour by saying that they would show her what it was like to be a real woman. She moved to a nearby village and stayed with other family members, but was unable to tell them why she had fled her parents’ house. Together with her partner, she fled to South Africa, even though she wasn’t sure if they would be accepted here. They travelled through Mozambique and arrived in South Africa in January 2012.

M applied for asylum shortly after her arrival. At the time, she was unaware that she could claim refugee status on the basis that she had been persecuted in Malawi because of her sexual orientation. She was also afraid of how the officials at the Refugee Reception Office would react. When she attended her first interview, she was accompanied by a friend of a friend, who was also from Malawi. Given the attitudes to homosexuality, she feared that by revealing her status to her friends, they may refuse to help her.

She did not state the true reason for her flight from Malawi.  Instead, she told the Department that she had fled for economic reasons; that she had lost her job and hoped to make money in South Africa. When she went for a second interview, she still did not tell the official the real story. She also did not want the Refugee Status Determination Officer (RSDO) “to think that I was lying or changing my story”.  She was trying to protect herself from further homophobic persecution.

Her asylum application was rejected. However, it was found that her right to approach the Standing Committee for Refugee Affairs (SCRA), who would be reviewing the decision of the RSDO, was never explained to her and the SCRA upheld the rejection of her asylum claim. She was advised to approach the Legal Resources Centre.

The UNHCR has recognised that merely being compelled to hide one’s sexual orientation amounts to persecution. The LRC argued on her behalf that sending her back to Malawi would constitute refoulement, because she faces physical and mental trauma (further persecution). South Africa is the only African country where sexual minority rights are protected by the Constitution. The South African government clearly has a legal obligation to give asylum to M. This obligation rests in section 7(2) of the Constitution; that is, to respect, protect, promote and fulfil the rights in the Bill of Rights. Section 2 of the Refugees Act contains a clear prohibition on returning anybody to a country where they will face persecution on the basis of their sexual orientation.

Restoring power or the dignity of rural people?

The LRC’s Constitutional Litigation Unit attorney, Wilmien Wilcomb, recently published an article in Business Day on the Traditional Courts Bill, entitled, “Restoring power or the dignity of rural people?” In it, she states that:

“Opposition to the bill is largely based on the fact that it does not reflect living customary law and its participatory and accountable essence. Instead, just as it entrenches apartheid boundaries and ethnicities, it also entrenches distorted versions of apartheid-era traditional courts. It is colonialism’s tribal boundaries and versions of traditional courts that are reflected in the bill, as has been pointed out by rural communities.”
Read the article here.

 

Litigating the Holes in Education

By: Claire Martens (writing in her personal capacity)

Children attending school in a mud structure (photo by Daily Dispatch)

In recent months, the spotlight has shone rather harshly on the holes in South Africa’s education system. Illuminating the deficiencies in the system has been largely the work of a number of non-governmental organisations (NGOs), including the Legal Resources Centre (LRC) and Section 27. I recall that a few years back, Equal Education (EE) was campaigning on the streets of our cities, hoping that government would take heed of their call for better facilities at schools. Since then, it seems that results still aren’t close to being satisfactory. EE then took the next step: using litigation as a tool to compel government to do something.

As everyone in this country knows, using the courts is an expensive exercise. It is not an action which is easily taken, but often used as a last resort. In an article published in the Daily Maverick, the author, Osiame Molefe, notes the litigation was only instituted in the EE case because the lobbying did not yield results, even after a few years. The LRC has also been engaged in litigation to address a number of issues which have been identified through their work. The body of the LRC’s litigious work which impacts on education has grown considerably of late. As one matter is dealt with, another one seems to rear its head. Reports about the education sector are often harrowing reads, and when issues like “love affairs” between teachers and learners are revealed, you begin to understand how bad things have become.

The right to education, as found in our Constitution, is not a right which can be half-fulfilled or left until a later date. The right to education should be immediately realisable. There is a further compelling argument: the longer that the country takes to make that right a living reality for each and every child, the longer this country will be burdened with a cycle of poverty. Without a proper education, you are condemning the youth of South Africa to a lifetime of unfulfilled potential, unemployment and loss of self-respect. Education, even if not the answer to all of society’s problems, goes a long way to solving at least some of them.

The fact that many of the miseries of our education system, which was already severely disfigured by the gross inequalities of Apartheid, are still endemic and prolific, means that it is not possible to stand by without taking action. NGO’s know what the issues are and can do something about it. While litigation is just one form of relief amongst many, and has its own deficiencies, when government does not listen to letters or lobbies, the strength of our legal system is available for harnessing.

NGOs do not litigate as a matter of rote, but often exhaust other avenues in order to address issues which they identify. Unfortunately, litigation is often piecemeal, reactive and sometimes ineffective if court orders are not complied with. However, this does not mean that efforts by legal NGOs have been in vain. The strength of a good precedent is that it can inform policy, reform law and be the foundation upon which other schools can gain relief. However, the question still remains as to whether litigation is the best way forward.

In a recent education workshop, the idea of a silver-bullet for solving education deficiencies was discussed. This is in response to Osiame Molefe who suggests that “nothing short of a comprehensive response that deals with all the facets of the problem will right this situation”. The straightforward answer, to the question of whether one exists, is that there is no silver bullet. The education system is constituted by a number of physical, cultural, human resource and infrastructural facets and it seems to be an impossible task to find a solution upon which everyone agrees. Where does one expend energy when there are issues with all of the facets? Even as legal experts with experience in education matters, participants found it difficult to suggest what this silver bullet would look like. The solution then is to forge forward as a collective; comparing cases, finding the holes and continuing litigation.

We all recognise that if a solution could be found, or a better way employed, we would jump at the chance to change how we confront these issues. Right now, litigation has achieved some valuable outcomes and the negative publicity surrounding the cases has resulted in government action. Although what has transpired is not yet enough to breathe a sigh a relief, and perhaps we never will, the fact that our president is now responding to our recent textbooks cases shows us that litigation is still a legitimate response to a particular issue.

Disclaimer: The opinions expressed by the Realising Rights bloggers, and those providing comments, are theirs alone and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.