Summary - The freedoms detailed in our bill of rights have given South Africans a sense of security, even of smugness. Constitutions are mere bits of paper that are frequently overridden by powerful rulers, but fortunately our constitution is backed up by a strong constitutional court, which ensures that it will not easily be torn up. However, many South Africans don’t realise that our constitution goes further than simply enumerating freedoms. It also contains powerful mechanisms to ensure that peoples’ rights are not only upheld but continually nurtured. These are set out in clauses 7 and 8, which state that ‘the state must respect, protect, promote and fulfill the rights in the bill of rights’ and that ‘the bill of rights applies to all law, and binds… all organs of state.’ These two clauses thus impose onerous duties on all government officials. Nelson Mandela was well aware of these obligations and he believed that they related not just to South Africa’s internal affairs, but also to its conduct of foreign policy. In several speeches leading up to the 1994 election he asserted that South Africa would promote its human rights values among states in Africa and further afield. However, he soon deviated from this goal by maintaining friendly relations with dictators such as Gaddafi, Castro and Paul Biya of Cameroon. He justified these friendships by referring to the ANC’s ‘universal’ policy (i.e. having negotiated with the vile apartheid regime, the ANC could do business with anyone) and also to the party’s loyalty to old friends. Until recently, Mandela’s successor, Thabo Mbeki, also seemed oblivious to the constitutional injunctions to respect, protect and promote the bill of rights in his dealings with dictators, most notably Robert Mugabe. But in recent months something appears to have stirred his consciousness of these duties. In July, commenting on the African Union’s choice of South Africa as the home of the Pan African Parliament, Mbeki said that South Africa hoped that its own democratic practices would rub off on other countries. Perhaps he knew that the distinguished counsel Wim Trengove would use clause 7 to try to persuade the constitutional court to order the government to intervene on behalf of the alleged South African mercenaries jailed in Harare and facing possible death sentences. Trengove argued that the constitution required the state to act to avoid the death penalty, even across the border. Meanwhile, the government has given shelter to Haiti’s deposed president Jean Bertrand Aristide. Brutal human rights violations were frequent under Aristide’s regime, and Reports sans Frontieres in 2002 added his name to its list of ‘Predators of Press Freedom’. By sheltering a person with such an abysmal human rights record, the government cannot be said to be carrying out its constitutional duty to respect, protect, promote and fulfill the rights in the bill of rights.
Most people in South Africa are aware of the freedoms they enjoy as they are spelled out in the country’s bill of rights. Those rights are impressive and are in advance of the rights detailed in the constitutions of many other countries. They have brought a sense of security and well-being to South Africans, if not smugness.
But constitutions are mere pieces of paper and, as has been seen elsewhere, have been overridden repeatedly when it has suited powerful rulers or dictators. South Africa, however, has the advantage of its constitution being backed up by a powerful constitutional court presided over by judges who uphold the principles and values of the constitution. This adds weight to South Africa’s piece of paper so that it cannot easily be torn up and replaced by another which removes those freedoms.
But the constitution goes further than merely detailing our freedoms. It contains powerful imperatives that can be called into play to ensure that peoples’ rights are not only upheld but are continually nurtured and fostered. Despite awareness of constitutional freedoms, the man in the street is not very well acquainted with these mechanisms. Lawyers, though, are making increasing use of them.
The mechanisms are contained in clauses seven and eight of the constitution and lawyers and political observers believe they impose onerous duties on state officials, many of whom, it would appear, are not as aware of their content as they should be. The clauses are there to ensure that the bill of rights becomes a shining beacon for civil servants and their political masters in their official duties in the hope of encouraging them to keep the rights of the people constantly in their sights and make sure that they are upheld.
Clause 7 (2) is the key clause. It states that “the state must respect, protect, promote and fulfil the rights in the bill of rights”. It is backed up by Clause 8 (1) which places emphasis on those duties and on those responsible for carrying them out. Under the heading of “application” of rights, it states: “The bill of rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state”. Those are extremely powerful injunctions to the politicians in the country’s national and provincial parliaments, judges and magistrates and even civil servants.
South Africa’s first democratic head of state, president Nelson Mandela, was well versed in the human rights and freedoms contained in the constitution — indeed, he said they represented African National Congress (ANC) policy going back to the 1920s — and was thus clearly aware of the obligations conveyed in those clauses when he assumed power in 1994.
He did not look upon these values and rights as related only to South Africa’s conduct of its internal affairs. He saw them as being laid out on a wider fabric, applying to South Africa’s approach to its regional and international affairs. This view emerged in a statement he made in the period leading up to the country’s first democratic elections in 1994. He said: “South Africa’s foreign policy will be based on our belief that human rights should be the core concern of foreign policy”. Associated values were respect for international law, the promotion of democracy, the search for peace and disarmament.
According to James Barber (in his book, Mandela’s World), Mandela was espousing policies and values that had been agreed to by the ruling ANC which he led.
Mandela, in several speeches at that time, said that that core concern should extend to international relations. “We are prepared, too, to shoulder our share of the responsibility for the whole southern African region, not in the spirit of paternalism or dominance but mutual co-operation and respect”. He went on, reflecting that “South Africa cannot escape its African destiny”.
He added: “(South African concerns are) fixed upon securing a spirit of tolerance and the ethos of government throughout the continent... A central goal of our foreign policy will, therefore, be to promote institutions and forces that, through democratic means, seek to make the world safe for diversity... A democratic South Africa will actively promote the objectives of democracy, peace, stability, development and mutually beneficial relations among the people of Africa as a whole”.
Though carefully phrased it indicated that South Africa would promote its constitutional human rights values among the states in Africa and internationally. But almost as soon as he had voiced these fine ideals, Mandela began deviating from them by his prominent friendships with dictators such as Muammar Ghaddafi (Libya), Fidel Castro (Cuba) and, in Africa, Paul Biya (Cameroon).
His justification was the ANC’s formulation of a “universal” policy arising, according to Barber, from its sense of achievement in having negotiated a settlement with the vile apartheid regime. Thus, the ANC reasoned, it could do business with anybody. A supplementary reason was loyalty to friends who had helped the ANC in its struggle against that regime.
There is no record of Mandela being conscious of the injunctions to respect, protect and promote the bill of rights when he met with the dictators. The same applies to his successor, president Thabo Mbeki, the most notable example being his exercise of “quiet diplomacy” in dealing with his dictatorial neighbour and abuser of human rights, Zimbabwe’s president Robert Mugabe.
However, recently something appears to have stirred Mbeki’s consciousness of these duties. In early July in Addis Ababa, as he celebrated the African Union’s selection of South Africa for the home of the Pan African Parliament, Mbeki was reported in ThisDay as having said that South Africa hoped that in hosting the parliament, its own democratic practices would rub off on other countries. Perhaps he had become aware of the argument that the distinguished counsel Wim Trengove would use to try to persuade South Africa’s constitutional court to order that South Africa had to intervene on behalf of the 69 alleged South African mercenaries jailed in Harare and facing possible death sentences.
Trengove, who was appearing on behalf of the Society for the Abolition of the Death Penalty, used clause 7 (2) to contradict the state’s argument that South Africa’s bill of rights does not extend across its borders. The state, Trengove argued, derives its existence and all its powers from the constitution and therefore it could not escape the constraints imposed by the constitution requiring it to act to avoid the death penalty, even across the border in Zimbabwe.
Meanwhile the South African government has given shelter to deposed president Jean Bertrand Aristide and his family from the impoverished Caribbean state of Haiti. Shortly after celebrating Haiti’s bicentenary of independence from French colonial rule — against a background of increasing opposition to his government the previous year — Aristide was deposed and was transported overseas by the Americans.
Aristide claims the Americans and the French forced him out of office. The Americans deny this and point to the letter of resignation signed by Aristide. The question that arises in South Africa is whether South Africa is breaching clauses 7 and 8 of the bill of rights by giving shelter to Aristide. Aristide has presided over a country in which violence, coups and dictatorial rule have been endemic from the time it freed itself from slavery by the French 200 years ago.
Aristide was originally elected by popular vote following a courageous campaign against the ruling dictator from the slums of the capital Port-au-Prince, but he too, like his predecessors, succumbed to the use of state violence and human rights abuse to maintain power.
Against a background of brutal police attacks on, and the frequent killing of, political opponents, armed militias and street gangs — the ruling party’s populaires — attacked opposition forces and journalists and terrorised the people. After a prominent journalist was killed in 2002, Aristide was added to Reports sans Frontieres’ list of “Predators of Press Freedom”. There have also been reports of Aristide’s involvement in the drug trade.
Brutal human rights violations were frequent under his regime with no attempt made to investigate or to establish responsibility. The US — which had rescued him and re-instated him in the early 90s — rejected him in February 2004 and ferried him into exile. The World Bank and foreign donors withheld aid after his second electoral victory in what they regarded as a deeply flawed election in 2000.
By sheltering a person with his abysmal human rights record and holding him up as a paragon of virtue, president Mbeki and his government can hardly be said to be carrying out their constitutional duties of respecting, protecting, promoting and fulfilling the rights in the bill of rights.
