A Wasteful Approach to a Constitution Full of Promise

27 March 2021

Those gathered at Constitutional Hill this past Monday, Human Rights Day, did so carrying placards which proclaimed: “defend our democracy” and “defend our Constitution.”

We were there to lend support to a campaign that seeks to resist the everyday sabotage of our constitution by actors not limited to but certainly epitomised by former President Jacob Zuma and those who align with him.

Covid demanded concessions of the gathering: numbers were limited, masks worn and social-distancing enforced. For a country famed for its mass gatherings and social mobilization, this forum may have seemed a slightly odd beast.

Looking around though it was hard not to feel a weight of history: among the crowd, Sheila Sisulu and Ilse Fischer Wilson. Each needs no reference bar their own individual professional accomplishment and activism. But their presence – Sheila, of the Sisulu family, and Ilse, Bram Fischer’s daughter – seemed to gesture poignantly to the sacrifices made in some cases by generations of South Africans so that constitutional democracy, and the rights safeguarded therein, might be won.

It would probably register only as atrocious affront to those who paid the ultimate price that twenty five years on from the adoption of South Africa’s constitution of 1996 we seem to have shuddered ignominiously to a stall. 

Monday’s gathering took place in the shadows of the Constitutional Court. It too might ask: how did this happen?

Twenty years ago, I was a clerk at the court. It hadn’t yet occupied its purpose-built premises on Constitution Hill. Instead it was housed in a work-aday office park on Hoofd Street. That seemed fitting – as if this then new court needed no trappings of grandeur. It’s importance would be signified by the content of its decisions.

Among the cases that came before the court at the time was that of Irene Grootboom and this entailed deliberation as to the meaning to be given the right to access housing. Some have said that the court didn’t go far enough in what it ordered of government but no one there can say that the considerations didn’t weigh inordinately heavily on the judges. The plight of those homeless and without shelter all too obvious but a recognition too that government in a developing state had finite resources and competing pressing demands as to healthcare, education and social security, among others.

The outcome: that there was to be progressive realisation of socio-economic rights. In the intervening years though there has been limited energy and resources expended delineating just what progressive realisation should look like.

Instead on Thursday the Court will be asked to rule on a question the answer to which must be obvious to anyone who genuinely asks: must a former president who fails to observe the lawful authority of lawfully established commission and that of the highest court in the land earn penalty for that failure?

It is about as constitutionally emaciated a dilemma as that posed by the social grants crisis, now having clogged the court for far too long, and which essentially forced the court to rubber stamp the extension of an unlawful, predatory contract because the court was left with no alternative and because it certainly wasn’t going to countenance disruption to payment of grants to beneficiaries – whatever the indifference of the then Minister of Social Development to such a fate.

But here’s another way in which the loss wrought by the years of state capture might be tallied: far from our Constitutional Court being asked during these years to realise and give content to the constitution’s highest aspirations for the people of South Africa, it has again and again been required only to shore up the bare minimum of what the constitution demands. 

The price of that lost opportunity cost though is incalculable.

Nicole Fritz is the CEO of Freedom Under Law.

This opinion piece was first published in Business day on 24 March 2021, available here.

FUL Endorses ‘Defend our Democracy’ Campaign

17 March 2021

Freedom Under Law endorses the Defend our Democracy campaign, launched a week ago in a bid to defend the Constitution.

The campaign, which has gained support across South Africa, aims to galvanize South Africans under a united call to action against the assault on our country’s constitutional democracy: download or read the full statement here.

FUL joins South Africans in calling for the defence of our Constitution and the upholding of the rule of law.

For more information on the campaign, click here.

You can also sign the online petition here.

Civil Society Supports Zondo Commission – Tells Zuma to Respect the Constitution

9 March 2021

Some of South Africa’s foremost civil society organisations have come out strongly in support of the State Capture Commission and have insisted that former president Jacob Zuma abide by the law. The 13 civil society organisations released a joint statement overnight stating that the politicising of the Zondo Commission needs to stop, while condemning Zuma’s continued defiance of the commission.

The statement reads:

We, representatives of civil society, jointly issue this statement condemning former president Jacob Zuma’s insistence on defying the State Capture Commission and the dangerous attacks he and other political actors have levelled at the judiciary without offering evidence in support of such charges.  

This kind of behaviour and blatant disregard of the law shows that those who are implicated in looting the state will place their own selves before the law, and before others whose lives their crimes have impacted.

South Africans have been waiting patiently, for nearly a decade, to hear the truth about State Capture. The Zondo Commission, which is funded by the public, must be allowed to do its job on behalf of the country. 

Activists, whistle-blowers and community leaders have shown their support of and submitted evidence to the commission.  

We wish also to indicate our support for the commission and the importance of its mandate at a time when it faces such baseless attacks. It is time to stop politicising the Zondo Commission and follow the laws that apply to us all. 

We know all too well that we come from a past of unconscionable inhumanity and inequality, where immunity for those who oversaw and implemented apartheid was the order of the day.

Our Constitution was always intended to represent a break from that past. It rests on the predicate that all of us are equal before this law

There can be no more harmful assault on this bedrock than that a former president, who has enjoyed every power and privilege under this law – and continues to enjoy the privileges of his former office – should insist that he be immune from the reach of the commission and of the Constitutional Court, and that this impunity stand unchecked. 

That he would insist on immunity while also seeking to sully the reputation of our judiciary, but making no credible case for these damaging charges, is but a further affront. 

Every citizen, including the state itself, is beholden to the Constitution, including Mr Zuma, and we trust that the Constitutional Court will find accordingly when it considers this matter on 25 March 2021. 

We have all come too far to allow underhanded politics to poison the well of truth and justice.

Signed by: 

  • Ahmed Kathrada Foundation (AKF) 
  • Alternative Information & Development Centre (AIDC)  
  • Council for the Advancement of the South African Constitution (CASAC) 
  • Corruption Watch (CW) 
  • Dullah Omar Institute (DOI) 
  • Freedom Under Law (FUL) 
  • Legal Resources Centre (LRC) 
  • MyVoteCounts (MVC)  
  • Open Secrets (OS) 
  • Organisation Undoing Tax Abuse (OUTA) 
  • Public Affairs Research Institute (PARI) 
  • Right2Know (R2K) 
  • South African Faith Communities’ Environment Institute (SAFCEI)

First published in Daily Maverick by Civil Society Group on State Capture.