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Sipho Pityana and Richard Calland: Democracy
17 September 2010
Business Day

Johannesburg: That South Africans can roll up their sleeves and deliver, beyond expectation, was proven by the success of the World Cup. However, it is just as clear from recent labour disputes about fair pay that our society is anguished by deep inequalities that continue to polarise the nation. As we are embroiled in these apparently intractable conflicts, we forget that half a generation ago, fierce adversaries sat down and found a way to process difference of opinion peacefully and arrive at consensus.

The constitution that emerged enjoyed public legitimacy and earned global admiration. That golden period of constitution- making under the bright promise of a rainbow nation is now but a hazy glow and to many, especially the younger generation, it offers little, even in the way of sentiment.

Though there have been significant democratic gains, and some people have benefited directly from the protective shield of the Bill of Rights, many progressive-thinking people are concerned that the values that underpin the constitution - such as human dignity, equality, public accountability and transparent government, and basic freedom - cannot be taken for granted.

In saying this, we need to recognise that these values do not mean the same things for everyone. They are the subject of intense contest - one person's freedom is another person's exploitation. A brutal and honest assessment would have us conclude that, while some have done very well out of democracy, the majority have done very poorly.

As well as providing the protection of universally recognised civil and political liberties, the constitution also provides not only for the protection of the poor and vulnerable, but their emancipation from deprivation and marginalisation, by offering the promise of socioeconomic justice and redress - with rights to education, and access to healthcare, social security, housing and water.

The constitution is intended not just as a set of rules to govern power, and the administrative arrangements and institutions of state, but also to chart the path to a just and equal society.

This notion of "transformative constitutionalism" is also not a neutral term. What do we want to transform to?

Some want to transform society all right, but they want to do it for their own selfish purposes - personal enrichment dressed in the language of social transformation.

We agree with the recent analysis of the Congress of South African Trade Unions: the extent of corruption and patronage is now so rampant that the principles of public accountability and efficacious public service are dangerously undermined by what it calls the "predator state".

In contrast, a vision of "progressive constitutionalism" - an interpretation of the constitution that furthers progressive political and societal values - is being squeezed out. Those values include economic welfare; quality basic education and substantial healthcare; freedom to make significant life choices; and environmental protection and sustainable development, among others.

Further , the constitution provides for equality before the law. For progressive constitutionalists, this means substantive equality, and the "equal protection clause" constitutes a pledge to overcome the hierarchic domination of some social groups by others - discrimination based on gender, race, religion and sexual orientation.

Moreover, progressive constitutionalists advocate an independent judiciary that safeguards constitutional rights and the separation of powers. An impartial judiciary is a central part of every legitimate democracy, able to decide cases on the basis of the law without fear or favour.

This vision of the constitution is now under attack from conservative forces. Those forces come in many shapes and sizes; and some are to be found in surprising places, including those who are in the guise of revolutionary rhetoric.

The dangers that they pose to a progressive vision of the constitution should not be underestimated; manifested in the accumulation of material wealth, ill-gotten gains plundered from the state at the expense of the public interest and the poor, they undercut the legitimacy of the democratic order.

Consequently, the majority see the liberating promise of the constitution as betrayed; they feel despondent and alienated. Thus, the credibility of the constitution as a powerful product of the struggle for liberation is questioned.

People are the ultimate custodians of the constitution and not mindless pawns to be wheeled out for the "celebration of historic dates" - in Franz Fanon's memorable phrase. This custodianship needs to be relocated from institutions to people.

Now, then, is the time to build a broad- based multiclass platform for engagement that can advance the constitution to the point that the majority of South Africans would be willing to stand firm in its defence. Once constitutional rights are claimed by the many, ordinary people will undertake extraordinary acts to assert their rights and protect and advance the constitution.

Today, [Thursday]at Liliesleaf Farm, Johannesburg, a group of progressive and concerned South Africans will gather to found a new organisation, the Council for the Advancement of the South African Constitution (Casac), with the public endorsement of nine eminent honorary members.

What is Casac going to do? When needed, it will say things about the constitution. It will aim to speak out on issues of constitutional debate and controversy, seeking to shed light rather than add heat. Its research will be aimed at informing the debate and offering options for compromise and consensus.

It will develop a strategy for the advancement of the constitution and then enlist the support and collaboration of existing organisations, to which it will funnel resources and work in partnership.

In its first phase, the strategy will focus on the related issues of resource allocation and delivery - for example, the performance of the state in realising the right to basic education, an issue that affects everyone, rich and poor, as well the economy - and public accountability: a state that is unable to openly explain and justify its actions, and to protect itself from the scourge of corruption, can never serve the imperative of social transformation nor its people.

It is no coincidence that we have chosen to launch Casac at Liliesleaf Farm - the place where members of the high command of Umkhonto we Sizwe were arrested in 1963 as they built a campaign to advance the Freedom Charter and its vision of a constitutional democracy imbued with the core progressive values of equality, dignity and freedom.

The constitution remains a work in progress. It requires constant attention if the sacrifices that were made in the pursuit of a constitutional settlement for SA are not to have been in vain.

It is time to mobilise to advance the constitution so that it can be restored to the pivotal position it enjoyed during the great, reforming years of the transition to democracy in the mid-1990s.

Failure to rise to this challenge is a risk we cannot afford to take. By pursuing constitutional rights, we can secure human dignity and thereby forge a progressive, prosperous and democratic society.

* Sipho Pityana is a business leader and interim chairman of Casac. Richard Calland is associate professor of public law at the University of Cape Town and a fellow founding member of Casac.

Keywords: constitution, governance, human rights, South Africa
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