Chairperson, hon members and comrades, human rights are rights that belong to every South African. Likewise, South Africa belongs to all who live in it, black and white. Our country will never be prosperous or free until all our people live in brotherhood, enjoying equal rights and opportunities with no distinction based on colour, race, sex or belief.
March 1960 saw 69 South Africans gunned down by the then inhumane and morally bankrupt regime in power in our country during the protest in Sharpeville. Those South Africans who gathered in Sharpeville, and many others throughout the length and breadth of this country, were fighting for the right to be treated as equals in the land of their birth.
We have a duty to remind ourselves of and to teach our children about the period prior to 1994, when the vast majority of white people in this land, with the exception of a small minority among them, claimed exclusive ownership of this country - an ownership, they argued, that entitled them to the land, wealth and participation in government to the exclusion of the majority of South Africans. The majority were expected to regard themselves as fortunate to be allowed to live, breathe and work in a white man's country.
This majority was expected to be content with being referred to as "garden boys" and "kitchen girls", even by those who were young enough to be their great-grandchildren. All this was only because the majority did not belong to the master race and was thus regarded as subhuman, without any human rights.
Informed by these and many other events predating our democratic dispensation, South Africans from all walks of life crafted and adopted the Constitution in order for us never to return to those dark days. It is a Constitution that enjoins all of us to build a society that is united, democratic, nonracial, nonsexist and prosperous.
Pursuant to these noble principles, South Africa today enjoys a system of vibrant multiparty democracy with a progressive Bill of Rights recognising political, socioeconomic and environmental rights and obligations. We have a system of the separation of powers between the executive, the judiciary and the legislature. Beyond the formal processes of regular elections, various types of legislated and other forums ensure popular citizen participation. The progress made in this regard since 1994 must be celebrated by all of us. Long may it live.
However, we hasten to acknowledge that regular elections and progressive policy on paper is not enough. While we encourage individual initiative and entrepreneurship, those who command political and social power must not be allowed to abuse it, especially in respect of the poor and the vulnerable. In this regard, South Africans must fight against all manifestations of racism, tribalism, religious and political intolerance, patriarchy and abuse of women and children. We must wage war against greed and the arrogant display of wealth. We must all campaign against the abuse of alcohol and drugs within our society.
We all have a duty to exercise maximum vigilance against forces that seek to subvert social transformation. There is absolutely no place in our society for groupings that organise themselves along the discredited apartheid racial lines with the aim of sowing hatred and division among our people. The demon of racism and tribalism must be confronted head on and defeated wherever and whenever it emerges. For human rights to thrive there cannot be any place in our society for organised crime, for corruption, both in the public and private sector, and for discrimination of one against another on any grounds whatsoever.
As mandated by the Constitution, the legislature, together with the Chapter 9 institutions, have the primary responsibility of ensuring that weaknesses on the part of government across all spheres that negatively affect government's responsibility for communities, including service provision and consultation, which often generates upheaval, must be highlighted. In light of this responsibility, all members of the legislature and those who represent Chapter 9 institutions must be above reproach. We argue that the greatest threat that we face as a country today towards the attainment of sustainability with regard to human rights is the prevalence of corruption, mismanagement of state resources and the lack or unacceptably slow pace of government policy implementation. These practises are not consistent with our Bill of Rights and the Constitution. Therefore, anybody, regardless of his or her status in society, found guilty of these practises must be isolated, exposed and held accountable. As the legislative arm of the state, we dare not fail in our responsibility in this regard.
In 2009, as an ongoing project of nation-building, the ANC committed itself to continue working together with all South Africans towards creating decent jobs, sustainable livelihoods, education and training, improved health care, rural development and the fight against crime and corruption. The organ of state that bears the primary responsibility to ensure this is the executive. All realists among us will agree that the pace by which this ideal society, with human rights for all, will be built is reliant, among other things, on the availability of resources, both financial and human, and of such resources being at the disposal of government and government agencies.
This government is correct in pursuing a mixed economy, with the state playing a major and interventionist role while co-operative and other forms of social and private ownership and private capital make their own contribution towards sustainable economic development. In my view, the state has a responsibility to encourage socially beneficial conduct on the part of private business, while ensuring that these investors are able to make reasonable returns on their investment. The current state of the global financial environment requires that South African economic and fiscal policies remain resilient to external factors beyond our control.
In his recent state of the nation address, the President outlined government's vision in addressing the triple challenges of poverty, unemployment and inequality. To succeed in this regard, it is important for government to focus on creating an enabling environment towards sustainable economic growth. It is also the duty of organised labour and business to make it possible that as many South Africans as possible, especially the youth, have decent jobs and sustainable livelihoods.
It is a violation of human rights when learners who are in the main black and from a poor society continue to be taught in unsuitable classrooms and on a hungry stomach. It is a violation of human rights when women and children are raped and killed and nobody seems to care. It is a violation of human rights when women and young girls are sold into slavery for prostitution and drug trafficking by drug lords. It is a violation of human rights when women are assaulted and stripped naked at taxi ranks just because their choice of dress code is not acceptable to all.
For as long as the South African child still has to walk for kilometres to school and cross flooding rivers on their way, and for as long as educators and parents lose focus of their responsibility for the education of all learners and students, this government must, without fear or favour, exercise its responsibility to eradicate the failures on the side of officials and educators and take them to task in terms of the implementation of government policy.
The commitment and efforts of this government to improve health care is commendable. No patient must die due to a lack of medication or equipment in our health care facilities even when sufficient funds have been budgeted for and allocated to these facilities. We are encouraged by the introduction of the National Health Insurance as well as the steps currently being taken to ensure that suitably qualified people are placed in charge of our hospitals and clinics. We call upon the pharmaceutical industry not to place profit before the wellbeing of our people.
Government has identified rural development as a priority area. Basic services like water, electricity, sanitation, roads and telephones remain a challenge. All these basic services are a prerequisite to economic development. Government needs to speed up the delivery of these services. Eighteen years, which we are into our democracy is a long time to wait for clean running water and electricity. Our women should not still be required to collect water from the river or firewood from the fields to maintain their households. These are the most basic of human rights and our people need to enjoy them today.
Our Bill of Rights guarantees that, and I quote:
Everyone has the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
In the interest of fairness, South Africans should not in this day and age have to defend themselves in a third or fourth language in our courts. Every accused person also has the right to have their trial begin and concluded without unreasonable delay. This human right is regularly flouted to the extent that there are a number of instances where South Africans are remanded in custody upwards of three years. In a case in KwaZulu-Natal, the length of detention before the conclusion of the case was nine years. We think it is important that our judicial system and the judiciary attend to such matters. Being incarcerated in an overcrowded cell is inhumane. Being incarcerated for even one day longer than necessary is a violation of one's right to freedom.
Working together, the state, business, organised labour and every South African citizen must contribute to building a society based on the best in human civilisation in terms of political and human freedoms and socioeconomic rights. This society must espouse the value that there are no superior or inferior South Africans. As South Africans, we must agree that there is no first-class or second-class citizen. We must guarantee that the colour of a person's skin is not what must define him or her, but rather the content of their being.
Until we succeed in establishing this society, the dream of lasting peace and prosperity will remain an illusion. The struggle for human rights for all must be sustained and nothing less than victory must be the end goal for all South Africans, black and white, rich and poor. The journey towards attaining universal human rights for all will not be easy, but acquiring anything worthwhile has never been easy. Aluta continua! [The struggle continues!] [Applause.]
House Chairperson, hon members, this debate is a celebration of a nation, not a political party. Today we honour the bravery of those South Africans who fell in the Sharpeville Massacre. Because of their sacrifices and those of countless others, we are the custodians today of one of the most progressive, most human rights-inspired documents in the world. It is a beacon that those who came before us never had - our Constitution and its Bill of Rights. Therefore it is with deep reverence and pride that we can say today that they did not die in vain.
Our Constitution sets a benchmark by which Parliament is duty-bound to measure our progress or regression in respect of human rights. It was the product of painstaking negotiation and historical compromise. It is our codified compact, based on a nonracial idea called "the new South Africa". Above all, our Constitution inherently expresses the classical definition of human rights: To do unto others as we would have them do unto us. It was this impulse that animated the young Mohandas Gandhi after he was pushed off a train in Pietermaritzburg; the founding fathers of the ANC 100 years ago; a young Steve Biko, who paid the ultimate price; a certain young journalist who fearlessly uncovered his violent murder; our nation's father, Nelson Mandela; our nation's conscience, Archbishop Desmond Tutu; the feisty Helen Suzman, a lone opposition voice in the apartheid Parliament; and countless other individuals who bravely played their part in bringing us all here today. This is why, in our parliamentary democracy, our Constitution is sovereign. There are no sunset clauses on the Bill of Rights. To say that the codified national consensus has "proved inadequate and inappropriate for our social and economic transformation phase", as hon Minister Radebe has said, is unproven. It is irresponsible and, quite frankly, it is disrespectful.
Hear, hear!
To demean the Constitution, which was co- written by the most iconic minds across political and social divides, to a mere temporary measure is the clearest indication yet of what the governing party has become. The truth is that our Constitution works. It is the mechanism that directs us unambiguously to redress poverty and inequality. It is not an obstacle to redress. When a government is weak and in need of reform, the solution is not to undo the foundation upon which it stands. The solution is to change that government. [Applause.]
The ANC's new rhetoric around the need for a so-called "second transition" is nothing more than a smokescreen to divert South Africa's attention away from the real issue of poor governance. [Interjections.] It is cynical to argue that South Africa needs constitutional amendments to achieve socioeconomic progress. On the contrary, the real roadblock to social and economic change is when South Africa deviates from the Constitution and its founding principles of nonracialism, judicial independence, the separation of powers and devolved government.
The Constitutional Court has fearlessly upheld the people's inalienable human rights in a number of important judgments. When a group of parents in the Eastern Cape had had enough of their children being subject to the daily indignity of attending classes in mud schools as a consequence of the government's failure to deliver, it was the Constitutional Court they turned to to uphold their socioeconomic rights. When government failure denied the courageous Irene Grootboom her right to decent housing, it was the Constitutional Court that upheld her human rights. When the government stood idly by as millions of HIV-positive pregnant women were helpless to prevent the transmission of the virus to their unborn children, it was the Constitutional Court that compelled the Minister of Health to provide the necessary medication. [Interjections.] On HIV/Aids, that court used its powers wisely and with restraint, but with unmistakable clarity.
The elegance of our Constitution is that it defines the boundaries of our policy-making. Every party represented here, every think-tank and foundation, every NGO and faith-based organisation - everyone, in fact, who cares about South Africa - is obliged to find answers within the human rights framework of the Constitution. This is what leads us on this side of the House to reaffirm the principle of broad-based black empowerment and to say that it needs to be fixed so that the rewards can be shared by millions. This is what directs us on this side of the House to support investment in capital infrastructure and to augment that with a plan for economic reform that will power job-creating economic growth. It is also what inspires us in the opposition benches to embrace Nelson Mandela's vision of nonracialism and to say that the only way we will achieve this is by building a pro-poor, nonracial economy.
And so we start by asking: How do we give expression and meaning to the Constitution? If amending the Constitution is the answer, then we are asking the wrong questions. The Constitution has not failed South Africa, the government has. [Interjections.]
HON MEMBERS: Hear, hear!
What we have today is a progressive Constitution underpinning an increasingly weak government. It is no coincidence that politicians around the world, facing a decline in electoral support on the back of service delivery failure, have also been tempted to interfere with constitutional arrangements. The difference is that in South Africa, we will never allow this to happen.
Those who are tempted not to stay the course with our Constitution should remember that change is difficult. Progress can be reversed. Societies can - and they sometimes do - fall apart. We do not have to look far.
Finally, it is ironic that while our human rights-inspired Constitution is being talked down at home, it is being talked up abroad. In a recent interview with Al Hayat television in Egypt, United States Supreme Court Justice Ruth Ginsberg, America's second female chief justice, advised:
I would not look to the US constitution if I was drafting a constitution in the year 2012. I might look at the Constitution of South Africa.
HON MEMBERS: Hear, hear!
This endorsement, shared by many, also directs us to ensure that human rights are upheld across our continent. From combating famine in the Horn of Africa, to defending gay rights in Uganda and ending the traditional subjugation of women in some communities, we must press for human rights norms to be observed.
It is always easier to be optimistic in good times and harder to show grace under pressure. Difficult days lie ahead and the last thing South Africa needs is a so-called "second transition", which aims to undo what so many worked hard to achieve. More than ever we need the certainty of our human- rights-inspired Constitution to guide us.
Let us be done with the governing party's rhetoric and proudly defend our Constitution. There is only one kind of "second transition" that will change South Africa for the better - the transition of a peaceful general election when a DA government is voted into office. [Applause.]
Madam Chairperson, I would like to start off by saying that a unique generation of South Africans from across the spectrum of our nation occupies this House today. This generation is distinguished by the fact that it was born into apartheid South Africa but had the unique opportunity to contribute and see apartheid to its end. It had a dual obligation because at the same time it had to lay the foundation for a new order of things - something that many generations before us had dreamed about. We ourselves had dreamed about it.
So, when at times we celebrated events of a nature that made us take hands - as we did at the beginning under the leadership of President Mandela, when we celebrated the 1995 Rugby World Cup, and after that, at events such as the 2010 World Cup - what we were emulating and making vivid was the picture of the kind of South Africa we had dreamed about. We did so because we recognised and understood the obligation on our shoulders. Whether we in fact understand the immensity of the task of actually constructing that dream in reality is a question that we must revisit from time to time. We must not stop. We must at every available opportunity create that vivid picture of the future of our dreams; the future we want our children to buy into. So we must hold hands whenever opportunities arise, but we must go beyond that because the task requires more than holding hands. It has to do with laying the foundations of educating the generations who will become the real South Africans.
Let me explain why I say "real". Those of us who were born under the conditions of apartheid were in some ways denied the atmosphere necessary to cultivate us as the best that South Africa required. It was Karl Marx who observed that social conditions shaped the consciousness of man. Those of us who grew up in conditions that were harsh and hostile were not being educated about human dignity. Those conditions did teach us but also distorted us. From us arose a generation of men and women on both sides of the colour line who understood the challenge of their time and had the courage to shape a movement that brought to an end that order of things. In the process, they imbued us with the capacity and courage to take what we inherited from them and we must now build on that. [Applause.]
On this occasion, I would therefore like to say that our forebears had a saying:
"E kojwa e sa le metsi". Leeto la botjhaba ba batho ba Aforika Borwa le qadile mathateng, empa re fihlile moo e leng hore motsotsong wa jwale, haeba re batla ho aha Aforika Borwa e ntjha, re lokelang ho kopanya dikelello, tsebo, matla le maruo ao re nang le ona mme motsotso oo ha ho batlehe hore re o tlohele ho ka re feta. (Translation of Sesotho paragraph follows.)
["Children should be taught from a young age." The cultural journey of the people of South Africa had a rough start, but we are now at a stage where, if we want to build a new South Africa, we should bring together our ideas, knowledge, power and wealth, and we should not let the opportunities pass by.]
So, where are we going to start? We must start with the young ones.
Hon member, your time has expired.
Oh no! [Laughter.] [Applause.]
Chairperson, Chairperson?
Please give me your 10 minutes!
Chairperson, can we have injury time?
I will now call upon the hon Skosana.
Chairperson, on a point of order: I just want to ask if it is not parliamentary for the House to acknowledge the beautiful medal around hon Lekota's neck and to also acknowledge that he cycled 110 kilometres - until the end. I think he deserves our applause. [Applause.]
Hon Kilian, we recognise the wonderful medal around the hon Lekota's neck, but that is not a point of order. [Laughter.]
Madam Chair, modesty makes it impossible for me to comment. Thank you. [Applause.]
The HOUSE CHAIRPERSON, (Mr M B Skosana): Madam Chairperson and hon members, firstly, let me thank the hon Chief Whip of the Majority Party for the motion he moved this afternoon regarding Sharpeville. I also thank the Leader of the Opposition for referring to Sharpeville. I am saying this because I am a survivor of the Sharpeville Massacre.
In the ANC's document on the transformation of the judicial system and the assessment of the role of the judiciary in the developmental South African state, the Minister of Justice and Constitutional Development, Jeff Radebe, reminds South Africans very often that the Constitution is the supreme law of the land and sets out to establish a nonracial, nonsexist and prosperous society, founded on human rights. I think this is at the core: a state and society founded on human rights.
We also think it is important that any assessment of the impact of the transformation of a society founded on the culture of human rights is predicated on the basic texts of international law on human rights. It means that national and regional parliaments, including the Pan-African Parliament, should mount ongoing periodic educational programmes to enlighten their members and citizens on the origin and socioeconomic implications of human rights and the need to integrate human rights in the system of governance and daily life. These educational programmes should pay attention to the relevant, proper and simple analysis of a collection of major international texts relating to human rights. These, and I will count them, are the texts that should form the basis of the education of our people.
Firstly, the Universal Protection of Human Rights are texts prepared within the United Nations and include conventions on the economic, social and cultural rights and the convention on political and civil rights. Secondly, the Regional Protection of Human Rights are texts prepared within the Council of Europe and they include treaties, conventions, charters and additional protocols to the conventions. Thirdly, texts prepared within the Organization of American States include conventions, declarations and additional protocols. Fourthly, there are texts prepared within the Organisation of African Unity, including the African Charter on Human and People's Rights of 1981. Lastly, there are texts from the Conference on Security and Co-operation in Europe, including extracts from the Helsinki Accords, or the Helsinki Final Act of 1975, the concluding documents of the Vienna Meeting of 1989, the document of the Copenhagen Meeting on the Conference on the Human Dimension of 1990 and the Charter of Paris for a New Europe.
We believe it is only when the culture of human rights is interwoven with all levels of our lives that a society and state founded on human rights will be realised. [Applause.]
Madam House Chairperson, this House adopted a Constitution 16 years ago as a vision for a postapartheid South Africa. We all proclaimed that it was founded upon human dignity, the achievement of equality and the advancement of human rights for all. Despite the widespread public outcry and condemnation today, exactly 16 weeks have passed since this House passed the secrecy Bill, a piece of legislation that in the form considered acceptable by members on this side of the House, amounted to a full-scale legislative assault on the freedom of the press and other media in South Africa - a basic human right entrenched in section 16 of our Constitution. On that note, those ANC MPs with a conscience, who remembered their power and refused to vote for the secrecy Bill, must once again be congratulated. However, 16 days ago the Minister of Justice and Constitutional Development proclaimed that he would be releasing a discussion document in support of the statement about reviewing the powers and decisions of the Constitutional Court and the role of the Constitution in showing where government itself has failed. This document is littered with derogative language seeking a judiciary that is compliant and co-operative with the executive, despite being constitutionally guaranteed its independence. The ANC policy discussion documents recently released show that the party has the Constitution and human rights firmly in its sight.
There is a different debate that should be held today, on the eve of the 16th anniversary of the establishment of the South African Human Rights Commission. This debate should be entitled "Human Rights Day - where government and the governing party close ranks to sow disunity and adversity by threatening human rights for all". [Applause.]
Agb Voorsitter, hierdie debat is inderdaad baie belangrik. Ons moet dit baie meer hou, maar aan die einde daarvan ook sorg dat iets gedoen word aan die gebreke wat gedentifiseer word. (Translation of Afrikaans paragraph follows.)
[Adv A D ALBERTS: Hon Chairperson, this debate is indeed very important. We must have it more regularly, but in the end we must also ensure that something is done about the shortcomings that have been identified.]
Much of the reason that human right abuses are still prevalent in South Africa today can be attributed to government's own policies and inaction. It stretches from the inability to deliver proper services to the implementation of policies that are self-destructive. So, today we are taking hands to show government where it is going wrong.
Firstly, the continued implementation of affirmative action, which keeps experienced white people out of jobs, especially government jobs, does not only affect the nondesignated persons but all of South Africa, as it seriously impedes the state's ability to provide proper services, especially for the poorest of the poor. So, one thing leads to another. This country's economy will grow for everyone once we rid ourselves of this form of discrimination.
Secondly, the state's inability to curb corruption is a serious threat to the human rights of all the people but also to the effective existence of the state itself. Thirdly, the state's blindness in managing language diversity properly is a serious impediment to social cohesion and you will see this once the Afrikaans community embarks on protest action against the languages Bill.
Fourthly, the changing of city and street names without considering the double-name option and solution will lead to increased future protests. Lastly, the inability of government to curb farm murders will have serious repercussions for future food security - this being a human right too. Once again, one thing leads to another. They are all connected.
Taken together - and this is by no means a complete set of problems - a valid case for breach of international human rights instruments can be made. An amount of 48 members of the EU has done so against farm murders and this will be a growing trend internationally.
Dit is tyd vir die ANC-regering om te besef die wittebrood is verby. Moue moet opgerol word en hande moet vuilgemaak word om die land werklik gelyk en regverdig te maak. Op hierdie oomblik word daar net lippediens gedoen aangaande diversiteit en menseregte vir almal en dit is baie jammer. (Translation of Afrikaans paragraph follows.)
[It is time for the ANC government to realise that the honeymoon is over. Sleeves need to be rolled up and hands need to get dirty to really bring about equality and justice in the country. At this point only lip service is being paid regarding diversity and human rights for all and that is a pity.]
Madam Chairperson, many among us agree that unity in diversity is a concept based on unity without conformity and diversity without fragmentation. Michael Novak wrote, and I quote:
Unity in diversity is the highest possible attainment of a civilization, a testimony to the most noble possibilities of the human race.
To be able to join hands to promote unity in diversity, we should first attempt to appreciate people of all kinds, men and women, regardless of their ethnicity, race and religious, political or geographical background.
One of our greatest challenges as a nation is to protect the human rights of all, particularly people who are not originally from our country. We need to relook how foreigners are treated in our country. If we succeed in achieving this unity in diversity, there will be a healthy relationship between locals and foreigners and we will reap excellent benefits for the good of all. The benefits will include preventing unnecessary confrontation and boosting our economic output, because the right people who are properly qualified would be allowed to do the job. This would also improve performance, productivity and quality of work.
Unity is strength. Africans must stand and work together to develop our continent. There is no single country that can develop Africa alone. We need one another. The saying "united we stand, divided we fall" is a universal truth and has stood the test of time. Africa's enemies will take advantage of us when we they notice cracks in our relationships. Unity is strength and brings success while division is weakness that brings a downfall.
The recent incident where entry to South Africa was refused to 125 Nigerians is regrettable. It is time for Africa to stand together, hold hands, unite in our diversity and face the challenge of making our continent a force to be reckoned with.
Chairperson, cultural diversity is one of the key challenges to the application and practice of human rights. When people are brought together voluntarily or involuntarily by the integration of markets and new political orders, tensions are sure to arise. Without a secure sense of identity amidst the turmoil of transition, people may resort to isolationism, ethnocentrism, racism, tribalism and intolerance.
The question therefore is how human rights can be reconciled with the clash of cultures that has come to characterise our time. Cultural background is the source of a great deal of self-definition, expression and a sense of group belonging.
Everyone is entitled to human rights without discrimination of any kind, with the fundamental principle being nondiscrimination. Human rights are intended for everyone in every culture. Nondiscrimination protects individuals from the violation of their rights by authoritative bodies.
If we are to unite in our diversity and still protect inherent human rights, we must accept that human rights are neither representative of nor oriented towards one culture to the exclusion of others. The practice and application of human rights must reflect a dynamic, co-ordinated effort to achieve common standards towards the protection of human dignity. No right can be used at the expense of or to the destruction of another.
To uphold human rights we should love, respect, serve, consult and be tolerant of all humankind. The brotherhood of man should be our guiding principle. No right can be invoked or interpreted in such a way as to justify any act leading to the denial or violation of other human rights or fundamental freedoms.
Chairperson, we must use Human Rights Day to celebrate our ability to deal with the grievances of the suffering masses. Diversity and unity is about respecting the structures created by human rights, like the Human Rights Commission, the Public Service Commission and the structures of government where we can report and deal with grievances. Let us use Human Rights Day to demonstrate to people out there that we can take the problems and provide amicable solutions. Tremendous challenges exist around the issues of sexual abuse in schools, child support grants and prostitution. These are some of the issues that are plaguing our country. How can we highlight the challenges that affect human rights and in the process start to educate our people about the structures where their complaints can be lodged and, ultimately, also show how we can deal with the promotion of human rights, unity and diversity? There must be a proactive and robust application of the Constitution so that citizens will begin to know what the promotion of human rights is all about.
Our schools have become dysfunctional. We want to protect our indigenous or ethnic languages and we want to protect all our cultures, so that we retain those human rights as a South African nation that is different from any other country in the world. Let us not undermine and erode our human rights by demonstrating the suppression of indigenous or ethnic languages. Just because they don't have a voice in this Parliament to protect their rights does not mean that those are not rights they would like to be protected.
I am reminded by the words of the democratic Constitution of the inclusion of a clause by the former MF leader, the late Amichand Rajbansi, who ensured the inclusion of a clause for the promotion, protection and preservation of everyone's faith, culture and religion.
Finally, the MF hopes that the happiness of all South Africans will increase like the price of fuel, that their sorrow will fall like the Zimbabwe dollar and that their hearts will be filled with joy, like the fraud and corruption that fills the eThekwini Municipality.
House Chairperson, hon members, our Constitution, the Constitution of the Republic of South Africa, Act No 108 of 1996, was adopted by the Constitutional Assembly in 1996, after centuries of colonial and apartheid repression and exploitation, a protracted struggle for liberation and, lastly, intensive negotiations. Our Constitution is the product of that history. As one of the main architects of the Constitution, Cyril Ramaphosa, said in an article on the Constitution in City Press over the weekend, "The Constitution was not brought down from Table Mountain on stone tablets."
We need to recognise the historical context of our Constitution. It is a document from history and that history is recognised in the Preamble. For the benefit of hon members on my immediate left in particular, I would like to read parts of it. The Preamble to our Constitution sets out its historical context, and I quote:
We, the people of South Africa, recognise the injustices of our past; honour those who suffered for justice and freedom in our land; respect those who have worked to build and develop our country; and believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; improve the quality of life of all citizens and free the potential of each person and build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
In what is effectively the introduction to the Bill of Rights chapter, the Constitution reads:
This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
The challenge facing all of us as South Africans is that we are a very unequal society, in which a large number of people live in conditions lacking in human dignity, where they are unable to enjoy the rights that are accessible to wealthier South Africans and where they are not free from want. The fact that this is the case nearly 18 years after the first democratic elections is not surprising given the enormous inequalities that have occurred in South Africa over the past 360 years. It is also not surprising that these inequalities are racially based. Those hon members here, or members of the public out there, who believe that we can forget about the past and move into what I think you call "an equal-opportunity society for all" without addressing the legacy of the past, I urge you to look at the statistics of the various racial groups in areas like literacy and education, infant mortality and the employment of school-leavers and graduates, to name a few.
It is important that we, as a country, continually debate these issues to see where we can do better. We cannot be restricted from including as part of this debate a consideration of the provisions of the Constitution and whether improvements can be made. [Interjections.] To remind hon members, in particular the hon Leader of the Opposition, our Constitution envisages review. It envisages an annual review by a Joint Constitutional Review Committee. [Interjections.] We have amended the Constitution 16 times already. I think, hon Mazibuko, that all those 16 amendments were introduced by the Minister of Justice, from the executive. We currently have a 17th amendment before this house, introduced by the Minister of Justice, which deals, among other matters, with the powers of the Constitutional Court. That amendment is not about reducing the powers of the Constitutional Court, but increasing them. Good grief! [Interjections.] Did you know that, hon Mazibuko? [Applause.] The amendment is before the Justice Committee and the issue we are debating there is this: As part of the political settlement in 1994, there was an agreement to keep apartheid judges. Prior to 1994, judges were appointed by the President in terms of Section 10 of the Supreme Court Act, Act No 59 of 1959, and it read - I think you should listen to this, hon DA members:
Chief Justices, Judges of Appeal, the Judge President, the Deputy Judges President and all other judges of the Supreme Court should be fit and proper persons appointed by the State President under his hand and the seal of the Republic of South Africa.
That was then, pre-1994. No Judicial Service Commission, no wider public involvement - the President could appoint who he wanted from among the senior advocates and, not surprisingly, the H F Verwoerds, the B J Vorsters and the P W Bothas appointed people who supported apartheid, many of whom regarded human rights as a communist plot. [Interjections.]
So, in 1994, with the introduction of the supremacy of the Constitution with the Bill of Rights, the problem was: Do you give this group of predominantly conservative white men - there was only one white woman judge at the time - the power of adjudicating on the Constitution? So there was an agreement to set up a new court to hear constitutional cases. This new court, or Constitutional Court, could include people who were not judges or advocates, provided that at least 4 of the 11 members of the Constitutional Court were existing sitting judges. Therefore, at that point you had the Supreme Court of Appeal, which was the highest court of appeal, and the Constitutional Court, which was the highest court for constitutional matters and issues connected with decisions on constitutional matters.
One of the amendments in the Constitution's 17th amendment is to widen the power of the Constitutional Court to consider any matter that the interests of justice require them to consider. This would effectively give the Constitutional Court the power to consider any appeal and one of the questions we need to ask ourselves is whether we need two levels of appeal court - the Supreme Court of Appeal and the Constitutional Court. So, when you appeal from a provincial High Court to the Supreme Court of Appeal and you do not like the decision that comes out of the SCA, you can petition the Constitutional Court to hear you.
Is this the best system, hon Mazibuko, in a country where most people cannot afford lawyers? I am told, for example, that all the current members of the SCA were appointed post-1994. So, were the concerns that caused the creation of the Constitutional Court still applicable? Should the Supreme Court of Appeal and the Constitutional Court not be combined? These are all legitimate questions that we should be asking ourselves. The Bill is with the Justice Committee and we are dealing with the matter. It was introduced last year. There was no fanfare, nor the gasps of horror we tend to be seeing now. We had public hearings, which did not get much coverage. We have met with some of the Supreme Court of Appeal judges and we will be meeting with the Constitutional Court judges next week. There is no party-politicking on this matter in the committee. In fact, there is a high degree of unity across party lines. We are endeavouring to come up with what is best for our judicial system.
Unfortunately, outside of the committee, these very rational debates have, hon Mazibuko, become clouded in hysteria. The leader of the largest opposition party - your leader, who ironically chooses not to take the position offered to her by the Constitution of leader of the opposition - accuses the ANC of having, and I quote:
... a heavily disguised plan to strip our Constitution of the checks and balances that empower people and limit the party's power abuse. If we allow that to happen, South Africa will become yet another failed transition to democracy, where people end up as oppressed as they were before they embarked on the struggle for liberation.
What rubbish! [Interjections.] For most of its 100 years of existence, the ANC has consistently advocated a Bill of Rights for South Africa, beginning in the 1920s with the Bill of Rights drafted by ANC president Pixley ka Seme, followed later by the African Claims Treatise of Alfred Xuma, writing in his capacity as president-general of the ANC and Secretary-Organiser of the Atlantic Charter Committee of South Africa. The African Claims Treatise document is dated 14 December 1943. There was also the ANC Youth League Basic Policy Document of 1948. [Interjections.]
Then, of course, we have the Freedom Charter, hon Maynier. When I'm talking about the Freedom Charter - you might have missed something here - we have a charter that, apart from stating emphatically that the people shall govern and be equal before the law, also had a specific section, which I think you may have missed, that all shall enjoy human rights. And throughout the 1950s, 1960s, 1970s and 1980s the programme of the ANC was a realisation of the demands of the Freedom Charter. [Applause.] It is only in the safety of a democratic South Africa of the last 18 years that it has become fashionable, hon Maynier, for others to claim allegiance to the Freedom Charter.
The ANC's Bill of Rights for a new South Africa of 1992 goes into great detail, including a right to judicial review, which stated that ...
... any person adversely affected in his or her rights, entitlements or legitimate expectations by an administrative or executive act shall be entitled to have the matter reviewed by an independent court or tribunal.
That is a provision in our Constitution! Quite frankly, it is mind-boggling that the ANC, the one organisation that has consistently and vociferously stood for democracy and human rights, and still does, can now be accused of wanting to tear up the legacy of the past 100 years. [Interjections.]
It is ironic that the people, hon Maynier, who, at best, stood silent or were actively involved in the promotion of or benefited from the crime against humanity that was apartheid should now be the ones who try and claim that legacy. [Interjections.] If one reads the Bible, Damascus moments are possible, but in the South African context one wonders if they are real or merely expedient.
We are accused of wanting to undermine the judiciary and the discussion document, as we have heard from the hon Mazibuko and her smallest ID sidekick, on the transformation of the judiciary system and the role of the judiciary in the developmental South African state is a case in point. [Interjections.] The document evaluates how far the judiciary and judicial systems have transformed and is published for discussion, hon Mazibuko. The recommendations seem eminently practical, such as assessing how the executive is implementing laws and court decisions, enhancing the efficiency and integrity of the Judicial Service Commission and the Magistrate's Commission, and the role of the Judicial Education Institute.
It also has a section proposing a research institution to assess the impact of Constitutional Court decisions on social transformation and the reform of law broadly. In this regard, I wasn't able to find any comprehensive research on that point but the fundamental question we should be asking, hon Mazibuko and hon Maynier and whoever else, is: Who is using the Bill of Rights to assert their rights? Is it primarily the advantaged or wealthy, or is it primarily the disadvantaged? While the Bill of Rights is available to everybody, it is primarily there to protect the disadvantaged, those who do not have the resources to stand up for themselves. Is this, however, the case? That is a legitimate question and not one to get hysterical about.
It is extremely ironic that some of those who vociferously support freedom of information on the one hand - hon member from ID or the former ID - want to stifle such a debate and set up no-go areas in the public discourse. [Interjections.]
Chairperson, I just want to raise a point of clarity. I am a member of the ID, not the former ID. I'm a dual member of the DA.
House Chairperson, I'm worried that the hon member hasn't read his Rules. You can stand on points of order or ask questions, but there are no points of clarity. I hope this does not reflect his reading of the Constitution. [Interjections.] What I was saying is that it is extremely ironic that some of those who vociferously support freedom of information on the one hand want to stifle debate, such as a debate on the Constitution, and set up no-go areas in the public discourse.
I want to end by going back to the theme of this debate. We have considerable challenges in our country, not least of which is poverty and inequality. We need to work together to overcome them. Let us avoid the hysteria. Let us avoid politicking for short-term party-political gain. Let us join hands, as the title of the debate says, to promote unity, diversity and human rights for all. [Applause.]
Debate concluded.