SPEECH BY THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AT THE AFRICAN RENAISSANCE CONFERENCE ON CONSTITUTIONALISM

16 NOVEMBER 1999

The Chairperson,
Deputy President,
Distinguished guests,
Ladies and gentlemen.

For centuries, much of the history of Africa has been seen through the prism of stereotypical images. The images which characterised the continent are suggestive of a terminal pathology. Western intellectual traditions have served Africa poorly and must ta ke much of the responsibility for shaping a mythology of barbarism and savagery. Without tracing the tragic and complex trajectory of its colonial and post-colonial past, Africa has arrived in the recent period to experience a wave of political change and social ferment spurred by what has been described as the global march towards democracy. The opening up of state and society in response to pressures for democratization provide a contextual template for robust debate and discussion of Africa's constitutio nal future. The idea of African Renaissance attempts to build conceptual and intellectual bridges that will lock all Africa in a common destiny.

The revival of Africa's fortunes has to take place in the context of competitive, participatory regimes with strong civic orientations. This is necessary in order to reign in authoritarian impulses and stifling patrimonial tendencies.

Ladies and Gentlemen, the form and content of the constitution to be produced within the African context must satisfy the following two crucial requirements:

Kwesi Kwaa Prah delivered a paper entitled "African Renaissance or Warlordism" at a conference held at the Karos Indaba Hotel Johannesburg 28 and 29 September 1998, the conference was discussing the themes of the African renaissance. He observed that the d aunting challenge for the vision of an African renaissance is the fact that current and contemporary African History is dogged by conditions of increasingly generalised war and warlordism on the continent. At no other time this century has war been so ramp ant on the African continent. He asked a question, how can we envision a renaissance when present experience points steadily to ever-widening theatres of war? Obviously a renaissance cannot take off in the debilitating conditions of war.

This Sunday night coming from a retreat in George, Commonwealth heads of government condemned the military coup in Pakistan and called for the immediate release of ousted Prime Minister Nawaz Sharif and others detained with him. In its editorial, the Sunday Independent said: "The Commonwealth played a significant role in mobilising international pressure against apartheid South Africa and in the search for a negotiating formula. It had less success in preventing the excesses of Idi Amin in Uganda, and the grisly executions carried out by Nigeria's military rulers. But it helped create the climate for the handover of power to a civilian government in Nigeria. It remains to be seen whether it will have any meaningful impact on Pakistan's military rulers. Pakistan had been suspended by the Commonwealth and the ministers' action group has been given further clout to deal with members who abandon democratic principles, whether by military coups or by human-rights violations."

The circumstances under which Africa finds herself today, politically and economically need to be put into context. There is a heart-tearing history in Africa before the present moment. We need to have an understanding of this, before we tackle issues of constitutionalism in Africa.

Number one is slavery. For centuries the schizophrenic Europe and America's needs for African slaves was insatiable. The Europeans including British ruthlessly took away Africa's self-worth. It is not my intention to get into that history.

Secondly, colonialism, Europe and America including Britain are what they are today because of African resources. The economic giants that they are today were built first on Africa blood and the unashamed plunder and stole from the underdeveloped countries . This has happened for centuries. Historians present here can bear with us that Europe is the mother-creator of the so called third world, largely Africa. Of course, central to the pursuance of African renaissance is economic independence of Africa. From the 1950's to 1994 Africa was unshackling itself of imperial colonialism.

The third is the independence neo-colonialism. The crucial problem that African constitutionalism grappled with immediately after decolonisation was that the traditional African leadership was destroyed with the potential replacing leadership still under d eveloped. This gave rise to military coups, military juntas, civil dictatorships and a general instability of effective functioning civil governments. The military juntas and similar forms of unrepresentative dictatorships were not known in the traditional African societies. Military and related forms of illegitimate dictatorships however become such a dominant feature of the African political scene that they became associated with the African tradition as such. This severely blemished the African tradition and caused Africa, in contradistinction to virtually the rest of the world, to be seen as an insoluble problem. This recent history of Africa was also mistakenly believed to be symptomatic of Africa as such.

The problem that Africa was confronted with was to establish legitimate constitutional alternatives - alternatives that avoid the need for dictatorships but that simultaneously also not constitute copying of structures prevalent elsewhere in the world but which are incompatible to the African culture and tradition. President Thabo Mbeki in one of his speeches on African Renaissance appealed to us to become rebels, rebels against tyranny, instability, corruption and backwardness . Indeed as he puts it, the n ew African world which the African renaissance seeks to build is one of democracy, peace and stability, sustainable, development and better life for the people, non-racism, and non-sexism, equality among the nations, and a just and democratic system of int ernational governance.

This is our challenge.

Chair person, let us reflect on the constitutional history.

African struggles for independence from colonial rule were invariably cast as struggles to realise freedom, equality, individual liberties and democracy. Thus apparently all African countries who gained their independence did so under constitutions imbued with notions of constitutionalism. These constitutions provided for separation of powers, government accountability to parliament, an independent judiciary, various versions of limited governmental authority and constitutionally entrenched Bill of Rights. But one after the other, these constitutions were amended, modified or altogether overthrown until the overwhelming majority of independent African countries had constitutions which bore little resemblance to the constitutions of independence day.

In the main the constitutions that were subsequently constructed rejected the fundamental premises of constitutionalism. The main victims of this unfortunate development were the African people who found themselves tyrannised by governments allegedly const ituted for their own protection and good. Even in countries in which some form of protection of human rights survived, political and legal or extra judicial practice has been so removed from the letter of the constitution that for most part of the last thr ee decades a number of African scholars even suggested that the study of African constitutions, as they appear on paper, should be abandoned altogether for they "bore but an obscure relation to governance and politics on the continent"

What is of significance is to understand how African governments got themselves into the situation of having "constitutions without constitutionalism". There are various explanations as to why and how our governments abandoned notions of constitutional gov ernance in favour of authoritarian regimes based on one-party rule, which were nothing but smoke-screens for one-man despotic rule. There is abundant evidence that the leadership who assumed state power after colonial rule had very little understanding of the function of a constitution in the process of governance. They had no clear conceptions of democracy from around which to construct an enduring constitutional vision.

This was not surprising because when the African nationalists fought the struggle against colonial rule, all they were really concerned with was the transfer of power from the colonial state. Thus the constitutional debates between the colonial state and t he African nationalists were invariably dominated by the need for settlement that would make possible the transfer of power. This resulted in the development of conceptions of a constitution as a mechanism for the transfer of power, rather than the regulat ion of power. Thus the African nationalists entered and emerged from the independence constitutional debates with superficial and fragmented ideas on the constitutional function or the nature of constitutional power.

The problem of Independence constitutions

The independence constitutions were marked by a clear distrust of centralised power. The colonial constitution had authorised the state to direct virtually all spheres of life in the process of controlling the economy and the citizenry in the interests of colonial exploitation and capital accumulation. The independence constitution sought to limit and control state power. The difference between colonial and independence constitutions, gave ammunition to the post-independence nationalist leadership to attack the status quo. They argued that the independence constitution was alien and unAfrican. They also argued that the restraint on the exercise of power imposed by the independence constitutions was an imperialist plot to render African governments impotent a nd hence unable to deal swiftly with the challenges that faced African countries.

When the African nationalist struggled against colonial rule, their main concern was the transfer of power from the colonial state. Thus the constitutional debates were invariably dominated by the need for a settlement that would make possible the transfer of power. This perspective resulted in the development of conceptions of a constitution as a mechanism for the transfer of power, rather than as the regulation of that power. The content of that power did not receive the necessary attention. Thus many Afr ican leaders entered and emerged from the independence constitutional debates with superficial and fragmented ideas on the constitutional function or the nature of constitutional power. The argument was advanced that the restraint on the exercise of power imposed by independence constitutions was not only un-African, but was also an imperialist plot to render African governments impotent and unable to deal with the challenges of development that faced African countries. Some African leaders sought for thems elves the undemocratic powers that they had seen arbitrarily exercised by their predecessors in the persons of colonial governors. The unchanged legal order had the space for them to do that.

The potential for subversion of constitutionalism was offered by the inherited legal order which was invariably characterised by an array of repressive legislation which had been put in place by the colonial state for the oppression of the indigenous popul ations. The independence constitution provided for the continuation of the colonial legal order, in spite of clear contradictions with the values of the independence constitutions. Such continuation was inconsistent with the principles of constitutionalism which were embedded in the independence constitutions. The Zimbabwean case is an intriguing example - While the Lancaster House Constitution embodies virtually all the elements of constitutionalism such as the rule of law, impartial judiciary, procedural rights etc the same constitution provided that the Rhodesian legal order was to be continued into independent Zimbabwe and also that those laws which were inconsistent with the Declaration of Rights could not be declared to be invalid by the courts until 5 years of independence. This is reflected in s26(2) (b) and (c) of Zimbabwean Constitution. The fact that the Constitution was declared to be the Supreme Law of the country made little difference since there was available to the independence government a labyrinth of repressive legislation such as the Law and Order Maintenance Act. The point here is that assumed by the notions of constitutionalism on which the independence constitution was founded.

For many African governments, the inherited legal order created the temptation to "opt out" of the constitutional framework in order to use the legal order which offered unlimited repressive and discretionary powers. (It is thus not in the least surprising that there is not a single military regime on record which has forgotten to provide for the continuance with "full force and effect" of the legal order even as the constitution was being abrogated.) Accordingly many governments simply ignored their consti tutions or "opted out" and found comfort in invoking the inherited repressive colonial legal order.

The opt out of constitutionalism

The process of opting out took various forms which included coups d'etats, total abrogation of the independence constitutions, ignoring the provisions of the constitution, amending or modifying the constitution. The net effect of each of these methods was to depart completely from the concepts of constitutionalism as provided for by the independence constitution.

Once African governments turned the concept of constitutionalism out, they were free to propound "African forms of democracy and constitutionalism" which gave them a free hand to subvert and "overthrow" their independence constitutions. They amended constitutions not only to concentrate power in the hands of the person of the President (as was the case with the colonial governor), but also spread this power to virtually all spheres of political, social and economic life. The result was the creation of const itutions which legalised despotic and arbitrary rule. No one needs to be reminded that key feature of authoritarian rule has been the ruthless suppression of civil society and the wide discretionary powers vested in the executive. In addition, repressive l aws were enacted to deal with the ever widening area of state security which became expanded to include virtually all activities of society. Matter of state security was widely defined so as to embrace all spheres of life, be they economic, social or polit ical. Where these wide powers seemed adequate to suppress popular struggles, states of emergency have been readily declared under which even more sweeping powers were bestowed on government.

Ladies and gentlemen, it is our duty to revisit the African tradition and to find in that tradition all that is constructive and useful that can serve as the building blocks of a truly African constitutional order. This is a daunting task. Much of the Afri can political and legal tradition has been recorded in writing. It was practised but not so much reflected upon. And it is always difficult to identify and describe something that lacks written record. In fact, one even finds the trend that some, as a resu lt of the lack detailed historical recording of the African tradition, hold the view that such authentic African tradition has never been in existence. Nothing can be more removed from the truth. The salient features of the African tradition have been in e xistence all along and are still living practice among our people. Our duty is to identify and define the main currents of this tradition and to incorporate it in the modern technically advanced political entities that we are seeking to construct.

This modus operandi is central to the cherished notion of African renaissance. Renaissance signifies rebirth. It therefore denotes something that had been in existence before but that has been dormant, submerged or even dead for a certain period of time. Renaissance therefore requires new life to be blown to the dead to induce a new awakening of the dormant. It therefore does not signify something that is totally new but rather something that has been in existence before and that is now resurrecting. The reborn entity is the same entity and must have the same character than the entity that lived previously in the context of changing culture. It is exactly for this reason that I emphasise the need for rediscovery of our tradition. In the absence of such rediscovery we are in fact not dealing with the phenomenon of renaissance at all.

By far not enough has been done in order to rediscover the typical African legal and political cultural tradition. Even less had been done to inject our emerging political systems with such rediscovered African characteristics. But at least some work has b een done in this regard. In one of the most quoted judgements of the South African Constitutional Court, that of State v Makweanyane the need was emphasised that when the content of constitutional rights under the South African Constitution is considered, regard should be had to traditional African jurisprudence.(See paragraphs 252-3; 258,304 and 373-4 of the judgement). The need for this was specifically stressed by judges Sachs, Madala and Mokgoro. The Constitutional Court made a good start. Unfortunately this commendable beginnings made by the South African Constitutional Court had not been followed up. One looks in vain for similar and perhaps more bold and practical engagement of African jurisprudence and cultural tradition in modern day law. Perhaps it is not fair to blame the Constitutional Court for this. At the stage when they made these utterances with regard to African jurisprudence, they still had the then interim Constitution as the textual framework in which to operate. The interim Constitution in its bold conclusive provision under the heading National Unity and Reconciliation inter alia stated the need for ubuntu. This authentic African concept does not feature in the current Constitution. We have therefore forfeited perhaps the only truly and exclusively African concept in South African constitutional law and perhaps we have sacrificed with that the textual foundation and encouragement for the furtherance of a truly African jurisprudence. This might even cast doubt on the seriousness of our com mitment to develop a concept of African constitutionalism. It reminds us that it is not enough to pay lip service to attractive phrases and notions without taking the trouble to develop them and to translate them into living practice.

Great work has been done on the African continent in order to attribute content to African jurisprudence and African constitutionalism. The African Charter on Human and Peoples Rights can be cited as a shining example. What is very appealing of the African Charter is that it did not simply follow similar international and regional human rights instruments.

There is genuine Africannes (or Africander) to it. It demonstrably deviates from the Westerns individualist notions of liberalism and also places a typical African emphasis upon a number of collectivities: the family, the community and the state. The Chart er does not only give rights but in article 27,28 and 29 also places duties upon individuals to serve the family, the community and the state in various ways. In this regard it guards against the extreme and often selfish chauvinism of capitalism that the Western tradition still grapples with. The African notion of constitutionalism is traditionally cast in the mould of a balance between individualism and collectivism and between rights and duties.

For a very long time the example that we were invited to follow was that which emanated from the Western World with its striking preoccupation with the interest of the increasingly sovereign individual, an individual in a virtually continued, albeit undecl ared competition and conflict, with all other individuals with the same disposition and inclination. In the beginning, of the 90's Francis Fukuama in his widely discussed book, "The end of history and the last man", told us that the liberal democracy devel oped and practised within the Western world is in a process of abiding by this globally Western instigated revolution. History has reached its end, said Fukuyama, and no one has anything better or at least any serious alternative to offer. Anything differe nt from liberal capitalist trend merely amounts to mere deviations from normality, not legitimate alternatives of public organization.

I do not agree. Many parts of the world - many of the great cultures of the world - are rediscovering their true identities by revisiting their own cultural traditions. The 1970's and the 1980's saw this happening in the Far East where for example the form er leader of Singapore, Lee Kwan Yu, one referred to as the greatest Englishman east of Sues, cited Eastern culture with its extremely wealthy content as an alternative for Western liberalism. He went further. It was not merely an alternative but morally a nd philosophically an improvement on Western liberalism.

I do not regard as appropriate the question of which tradition is bad and one is good. What is true is that there are various traditions, each with its own integrity. What is true is that imperialism success has for a long time misrepresented the Western c ulture as qualitatively better than any other culture. It gave the Western culture self confidence to cite its own culture and its economic and constitutional products and the only tradition worth serious consideration. This has also changed.

Economic progress is currently made in many centres of the world. Africa is also showing signs of economic recovery after long years of deterioration and distress. Economic growth produces many commodities, also the commodity of self confidence, both indi vidual as well as collective self confidence in the historical tradition of the individual performers. This is exactly what happened in the East. No doubt, Africa with its promising signs of economic recovery is bound to be blessed with the same psychologi cal benefits. This will be a tremendous factor towards us rediscovering our own tradition and engaging that tradition in our daily practice also within the constitutional field.

The weekend Citizen 13/11/99 Carries an article "Aid democracy, urges Mbeki". The President addressing the heads of commonwealth warned against elected leaders transforming themselves form accountable politicians into self-serving tycoons. It emerges from that summit that may commonwealth countries are entering the new millennium on a footing of insecurity. Thus commonwealth leaders paid special attention to the funding of new democracies to ensure that they survive.

The beginning have been made in the great and existing task of rediscovering our tradition and of utilising that in constructing a truly African constitutionalism. The African Charter on Human and Peoples Rights testify to that and so does the observations of the Constitutional Court. The Organization of African Unity is increasingly signifying that it will not tolerate illegitimate dictators in its ranks. This is another encouraging sign, showing that Africa needs not look to someone else to set standards and to apply criteria for it. Africa is increasingly developing and applying these criteria itself. It is rediscovering its own tradition and making its own history and it does so increasingly.

Revisiting a tradition and putting that to the use of constructing African constitutionalism is no easy task. We have to consider it at an occasion like this but we must put all our efforts in rediscovering the tradition and making that an integral part of our constitutional system. A renaissance is not merely an intellectual exercise. Eventually it has to become a way of life.

What we can say with self confidence is this: Africa after decolonisation is not the maladroit infant it used to be forty or thirty years back. We have learnt a lot, gained experience and a lot of self confidence and are making progress in the economic and political spheres. We need not be plagued with African psychological depression anymore.

When it comes to constitutionalism we may observe that Africa is clearly undergoing the exiting process of economic modernisation. Many a theorist think that modernization also denotes Westernization. This is not so: on the contrary, our modernization must be the strongest impetus towards a genuinely African constitutionalism. Much is still to be done in this regard. This work has however begun in all earnest.

The African Renaissance is an invitation to Africans to re-define themselves. We should take cognizance of the failures of yesteryear. Great expectations still collide with Africa's bitter past. Its colonial past has bequeathed the continent political path ology and social fragmentation. A defining challenge for African constitutionalism will be to find ways to limit the abuse of power and to respect the human rights of the African people. Un Secretary General, Kofi Annan, appealed to members of the OAU at t heir June 1997 Summit in Harare to respect human rights as a foundation for regional peace and security.

An integral part of a Renaissance will be the development of an institutional capacity to govern our African society. We as Africans must use the idea of a renaissance to break free from the legacy of colonialism.

The time has never been more opportune. A resurgent and emerging Africa carries the hopes of its citizens.

Thank you.