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We must look into our national soul to make sure it lives forever

Sixteen years ago South Africa made history by breaking with the history of apartheid and colonialism.

We adopted a constitution described by President Nelson Mandela as, “our national soul, our compact with one another as citizens, underpinned by our highest aspirations and our deepest apprehensions.”

Despite being forged in the furnace of negotiations between those forces representing a dying and decaying apartheid past and those representing a democratic and progressive future, the Constitution emerged true to its ancestry.

The Bill of Rights adopted by the ANC in 1923, the Africans’ Claims adopted by the ANC in 1943, and the Freedom Charter adopted in 1955 are the tributaries that fed the wellspring that is our Constitution.

Our Constitution is a revolutionary and transformative document. It is the supreme law of the land, the basis for the transformation of our society into a united, a non-racial, non-sexist, democratic state founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms.

This vision can only be truly realised through the fundamental transformation of our society, a monumental historic project requiring a democratic developmental state acting in concert with all sectors of society.

Transformation is mandated, driven and guided by the Constitution. The Constitution is not designed to obstruct transformation but to facilitate it.

We are all duty bound continuously and critically to assess the progress we are making in discharging this mandate. The Constitution expects nothing less of us.

The Constitution creates a democratic state consisting of three, co-equal branches which have distinct but interdependent roles to play in transforming society.

The legislature exercises its legislative authority  by passing laws which must progressively advance transformation of the state and society; the executive is responsible for the implementation of laws and the development of policies geared towards the transformation of society;  the courts exercise judicial authority by interpreting the laws passed by the legislature and action taken by the executive in accordance with the Constitution.

The judiciary, along with the legislature and the executive has a constitutional mandate to transform society. However, in order discharge this mandate it must itself be transformed, as must the executive and the legislature.

The Constitution provides that as soon as is practical after the new Constitution took effect, all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new Constitution. The Constitution entrusts this task to the Minister of Justice acting after consultation with the Judicial Services Commission.
The task of “establishing a judicial system suited to the requirements of the new Constitution” is a complex and multifaceted endeavour.

Significant progress has been made in ensuring that the judiciary reflects broadly the racial and gender composition of South Africa as mandated by the Constitution. In 1994 there were only three black people and nine women serving as judges. By 2011 there were 136 black people and 61 women out of 225 judges.

However, transformation is not only a demographic concept. The transformation of values and mindset, architecture of the judicial system and its administration, the development of a new jurisprudence and access to justice are all vitally important aspects of transformation.

The discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African state released by the Minister of Justice, Jeff Radebe, this week seeks to address these issues.

The document proposes the following measures to accelerate and deepen transformation:

  1. Intensifying institutional reforms that are geared to enhance the capacity of the Constitutional Court to lead the evolution of our constitutional jurisprudence.
  2. Making optimum use of the Judicial Education Institute to facilitate the development of an appropriate judicial education curriculum that will enhance the skills, competencies and social context attributes of judicial officers.
  3. Enhancing the efficiency and the integrity of the Judicial Service Commission and the Magistrates Commission in the execution of their constitutional mandates of facilitating the transformation of racial, gender and other constitutional attributes in the Judiciary.
  4. Establishing a framework for the monitoring of the evaluation of the implementation of the court decisions by all state departments to advance respect for the rule of law.
  5. Building a strong research capacity for the state by re-engineering the South African Law Reform Commission and the Rules Board for Courts of Law, to realise the full potential of the research capacity of the State.
  6. Facilitating the establishment of mechanisms for the three branches of state to engage in regular debates to manage their interface within the context of the separation of powers in pursuit of a common transformative goal that is geared to

Regrettably, these vitally important issues have been ignored and all attention has been focused on a proposed evaluation of the impact of Constitutional Court judgments on the transformation of society.

This proposal was greeted by interventions from certain quarters that border on the hysterical.

Some sought to cast aspersions on Cabinet’s motives. Suggesting, in effect, that the very act of debating matters concerning our courts, their decisions and their powers in relation to other branches of the state is dangerous and constitutes a threat to the Constitution, democracy and the rule of law.

We must resist the tendency effectively to declare these vitally important matters to be outside the bounds of legitimate public discourse or, alternatively, out of bounds for some. We must uphold the right of all, including the executive, to participate these debates and discussions.

The uncontested fact is that government has an unassailable track record of respecting and defending the integrity and independence of the judiciary.

Since 1994 government has respected and implemented every single judgment of every court in the land, even where it has disagreed with the those judgments.

Recently, measures have been taken to give the judiciary greater control over the day to day administration of courts through the establishment of the Office of the Chief Justice.

Early in our democracy, President Mandela took the unprecedented step of appearing in court, in person, as a sitting head of state, exactly to make the point that government respects the authority of our courts.

Many societies who have experienced centuries of constitutional democracy continue to engage in vigorous debate and discussion on the role of, and relationship between, the respective branches of the state. There is nothing wrong with this.

It is not only the content of our Constitution but the vigorous debate and public participation process followed in its formulation and adoption that has made it the universally respected and increasingly emulated document that it is.

It was worring to learn from an opinion survey released this week by TNS that only 31 percent of South Africans felt the judiciary was unbiased. More worrying was that 38% felt they did not know enough to express an opinion. This is a clear indication that we need more, not less, debate on the role of the judiciary.

Today, as we work together to realize the vision contained in our Constitution, we must never shy away from engaging in the spirit of vigorous debate and rigorous intellectual engagement that epitomised its genesis. Failure to do so will result not in respect, consolidation and strengthening but in stagnation, ignorance, decline and loss of legitimacy.

Let us debate in the spirit that President Mandela ended his address to the Constitutional Assembly, by pledging that, “Never and never again shall the laws of our land rend our people apart or legalise their oppression and repression. Together, we shall march, hand-in-hand, to a brighter future.”

Andries Nel is the Deputy Minister of Justice and Constitutional Development
Sunday Independent, Sunday, 4 March 2012