Two decades of our constitutional democracy may seem like a long time. The reality, however, is that our democracy is still in its embryonic phase in real terms.
That said though, it is my submission that the constitution of the Republic of South Africa must be, and should have been, included in the curriculum of the Department of Basic Education as one of the essential learning areas taught at an early stage in our schools.
My raison d’être is that South Africans, broadly, are yet to contextualise comprehensively what the nuts and bolts of the constitution of the Republic of South Africa are, and what they entail.
The doctrines upon which it rests are complex, and the jurisprudence we hoped would greatly assist in terms of concretising it in the appropriate forum, the Constitutional Court, is barely visible.
The exorbitant costs of approaching our courts, lower ones included, are extremely prohibitive and they thus paralyse the faster development of that constitutional jurisprudence – a necessary ingredient needed to educate citizens on what our constitutional democracy means in practical terms.
When our founding doyen of the democratic South African government, Nelson Mandela, authenticated our constitution into law in Sharpeville on December 10, 1996, the whole world joined and celebrated that joyous day with us.
We ought to have, before that date, planned ahead and made the learning of our constitution, in particular chapters two (the Bill of Rights) and nine (state institutions supporting constitutional democracy), a subject which had to be offered to learners at basic education level, starting from 1997.
Had we done so, the general understanding of our constitutional critical imperatives would be better today.
Mandela’s signing into law of the constitution propelled South Africa on to a completely different constitutional trajectory. That the adoption of the constitutional text on May 8, 1996, by the Constitutional Assembly failed to pass the constitutional muster and the Constitutional Court refused to certify it in its judgment delivered in September 1996, escaped our collective minds.
The Constitutional Court judgment in September 1996, known as the First Certification Judgment, ought to have informed South Africans that the doctrine of parliamentary sovereignty had become obsolete.
Flowing from that court decision, as a society we should have learnt that parliamentary supremacy is no longer limitless – hence my contention that the constitution must be taught as a subject at schools.
The struggle for liberation and freedom was, among other things, geared at collapsing apartheid rule which oppressively reduced black people to be hewers of wood and drawers of water using its sovereignty status. During the apartheid era, no matter how unjust acts passed by the sovereign Parliament of that time were, so long as the process was substantively correct, none of us, courts included, could venture contrary views. Apartheid sovereign Parliament accounted to itself.
Judicial constraints on Parliament were strictly limited to procedural processes of Parliament which, in my view, were meaningless.
The democratic constitution in toto can only serve as our society’s transformative tool when it is taught to young pupils at school whose future we hold in trust. Omission to do so will result in them, like us adults, who lived under the yoke of apartheid for centuries, failing to understand its contextual dogma the day they become legislators, professors of law or legal practitioners. Evidence clearly shows that across a broad spectrum of our society, our constitution is misunderstood.
For instance, in my view, Judge Nicoline Janse van Nieuwenhuizen saw nothing wrong when delivering her judgment ordering the release of Janusz Walus on parole when she said, albeit in passing, that Limpho Hani, the widow of assassinated Chris Hani, should “move on with her life”.
The honourable judge failed to appreciate that Limpho Hani, correctly so, has the right not to “move on with her life” until such time that she found it in her wisdom at her own time to do so.
We see our constitution as an abler of rights only, but the attendant flip side, which enjoins us to appreciate the huge responsibilities attached to these rights, we seem not to know about.
Service delivery and student protesters in the process of exercising their democratic right enshrined in the constitution, with no exegesis to do so, miss no opportunity to consciously damage inadequate community and business properties they will need a day after their concerns have been addressed.
The rule of law in the process gets compromised in the guise prism of civil society activism, since no criminal punitive consequences are meted out to the majority of those who damage property while exercising their right to protest.
Unprotected strike protests are becoming a norm to the point of halting critical hygienic services such as refuse removal in the City of Joburg. The right to strike is guaranteed by our constitution so long as due process is adhered to.
Why would some unions choose to strike without following the rule of law? I submit the answer lies in our collective failure to aggressively educate in a formal systematic manner our communities at a tender age on their constitutional duties vis-à-vis rights and obligations.
Periodic campaigns on the workings of our constitutional democracy are a means to an end but on their own cannot fully educate us.
Embedded in the subconscious beliefs of some or most members of our society exists a view that the constitutional democratic parliament functions not too differently from the archaic period where parliamentary sovereignty ranked above the law.
They hold the belief that Section Two of the Constitution Act prescribes that the constitution is the supreme law of the republic, law or conduct inconsistent with it is invalid.
The public protector, a state institution established to support our constitutional democracy, is seen as an albatross we should not have created precisely because we spent little or no time learning the meaning and application of our constitution.
The public protector’s Secure in Comfort report is an indicator which shows that not only legislators hold the view that parliamentary sovereignty ranks supreme.
Some counsel, who appeared before the Constitutional Court in the Secure in Comfort report litigation, made submissions which pointed in the direction of parliamentary sovereignty instead of simply subjecting the report to a judicial review process, a perfectly legal avenue provided for by our constitution.
With our constitutional democracy still teething and our quest for the fulfilment of democratic constitutionalism, we must take it upon ourselves and introduce it as a learning area, also for tertiary students studying towards non-law degree qualifications. It should be compulsory for them to study constitutional law for non-degree purposes.
In so doing, future society will be best placed to interpret our constitution contextually and distinguish parliamentary sovereignty from constitutional supremacy.
*Advocate Mahlodi Sam Muofhe is special adviser to Minister of Public Service and Administration Ngoako Ramatlhodi. This is written in his personal capacity
** The views expressed here are not necessarily those of Independent Media.