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    Conference Papers

    Reflections On South African Constitutional Democracy – Transition And Transformation

    Keynote Address - Reflections On South African Constitutional

    Democracy – Transition And Transformation

    By Deputy Chief Justice Dikgang Moseneke

    At The Mistra

    -Tmali-Unisa Conference

    20 Years Of South African Democracy:  So Where To Now?

    The University Of South Africa

    Wednesday 12 November 2014

    Introduction and salutations

    I salute you all distinguished people of our great country.  I am grateful to be here rather than in court this morning.  I owe gratitude to Mapungubwe Institute for Strategic Reflection (MISTRA), the Thabo Mbeki African Leadership Institute (TMALI) and special thanks to my alma mater and the only university I have ever attended and from which I acquired no less than 3 degrees during my short stint of 10 years on Robben Island.  Yes, 10 years can only be a short stint if one remembers that our departed and beloved leader, Mr Nelson Rolihlahla Mandela, was there for 27 years.

    I have been asked to reflect on our constitutional democracy with a slant on transition and transformation.  This I propose to do by looking at the past 20 years only fleetingly in order to proffer reflections on our collective future.  Our hosts have urged that our dialogue in the next two days should be not diagnostic but rather prognostic.  The thematic conversations at this conference seem to require of us not to analyse the past until we are hypnotised but rather to probe the future, as Lenin famously asked: “what’s to be done.”  Appropriately, we have been counselled to dwell in the past only so that we may thoughtfully pose the question: “so where to now?”

    This conference will be reflecting on selected trends and features of our democratic transition.  I hope not to venture into allotted terrains of distinguished leaders, scholars and other thinkers who will be presenting in panels.  Therefore, I will not recount historical moments, nor dabble in the discourse on our political economy or African economic renewal, let alone the global economy.  There are others better suited to that task.  Similarly, I won’t debate values, nation formation and social compacting.  Nor will I venture into a discussion on innovation, trans-disciplinary knowledge or of the prognosis for a developmental state.  These matters will enjoy the attention of distinguished contributors.

    I propose to stick to my knitting.  I must remind myself that, although I am a child of our revolution for a just society, I am a sitting judge in the service of all our people and their democratic state.  It behoves me to speak like a judge, a role I have played so long that it now feels like the only thing I have done all my life.  I will describe briefly our transition and the normative scheme of our democratic enterprise.  Next, in broad brush strokes, I will depict what the transition has yielded.  Being a judge I will catalogue what the courts have done in the two decades of transition.  I will then turn my lens onto four selected features of our democratic project that pose trenchant challenges to the democratic project.  These challenges, I think, deserve our careful reflection, as we, patriots, ask what is to be done.

    The first of the challenges is the land question.  Here, I will be probing whether the democratic project has secured urban and rural land justice.  The second issue flows from the first.  It is the vexed terrain of the achievement of equality, non racialism and restitution.  In the third instance, I will ask questions about the impact of concentrated executive power on our public institutions and lastly I will reflect on the mediation and adjudication of public disputes.

    Transition and resultant normative scheme

    Let me start with a touch of patriotic vanity.  In the wake of the Arab Spring, a US Supreme Court Justice, Ruth Bader-Ginsberg, whilst visiting Egypt was asked to provide advice on constitution-making.  She is reported to have said:  “I would not look to the United States Constitution if I was drafting a constitution in 2012”.  She recommended to the Egyptians to look, in her words, to “the South African Constitution and perhaps the Canadian Chapter on Rights and Freedoms, and the European Convention on Human Rights.”[1]

    A fascinating law journal article: ‘The Declining Influence of the United States Constitution[2] penned by two American Law Professors,[3] bemoans the decline of American constitutionalism around the world.  The article reports on an empirical study of constitutions of the world and finds that four constitutions are influential benchmarks for modern constitution-making.  It lists the constitutions of South Africa, Canada, Germany, and India.[4]  So we can afford to be gentle on ourselves.  We have managed our post-conflict arrangements better than we grant ourselves.

    Our constitutional democracy was forged on the anvil of division, past injustice and economic inequity, but also on the hope for reconciliation, nation building and social cohesion.  Notionally, our Constitution is premised on the will of the people expressed in representative and participatory processes.  It does not only establish its supremacy, rule of law and fundamental rights but also recites our collective convictions.[5]  It contains our joint and minimum ideological and normative choices of what a good society should be.  It enjoins the state, all its organs, to take reasonable steps without undue delay to achieve that good society.  The virtuous society envisioned has a significant social democratic flavour, some reckon, and yet others take it to be a neo-liberal compromise.  Aside facile tags, the Constitution provides for many progressive things.  It protects and advances fair labour practices.[6]  It compels all to preserve an environment that is not harmful; for the benefit of present and future generations.[7]  It envisions restitution of land to victims of dispossession but does not permit arbitrary deprivation of property.  It permits expropriation and redistribution of land for public good provided that it is against just and equitable compensation.[8]  The envisioned society sets itself firmly against poverty, ill health and ignorance.  This it does by promising everyone the right to have access to adequate housing, healthcare, food, water and social security subject to available resources and progressive realisation.[9]  A child’s best interests are of paramount importance in every matter concerning it.[10]  And everyone has a right to basic education including adult basic education.[11]

    To download PDF of paper: Moseneke Keynote Address at the 20 Years of Democracy Conference 12 - 13 November 2014.pdfMoseneke Keynote Address at the 20 Years of Democracy Conference 12 - 13 November 2014.pdf

    [1] New York Times, article titled “‘We the people’ Loses appeal with people around the world” published, February 6 2012.

    [2] Published in New York University Law Review, Vol. 87, 2012.

    [3] Prof David Law and Prof Mila Versteeg.

    [4] At p 809-29.

    [5] Section 1 of the Constitution of the Republic of South Africa.

    [6] Section 23.

    [7] Section 24.

    [8] Section 25.

    [9] Sections 26 and 27.

    [10] Section 28.

    [11] Section 29.

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