Minister Mmamoloko Kubayi: 30th Anniversary of the Constitution of the Republic of South Africa

Executive statement by Minister of Justice and Constitutional Development Mmamoloko Kubayi on the 30th Anniversary of the Constitution of the Republic of South Africa on the occasion of National Assembly Plenary

House Chairperson 

Honorable members 

Good Afternoon

Honorable Members,

On 08 may, 1996, elected representatives of the people of South Africa gathered in parliament to celebrate the victory of the many years of struggle for freedom and democracy. Two years after our democratic elections, it was on this occasion that the constitution, that is now part of who we are as South Africans, was adopted as the supreme law of the land binding the executive, the legislature, and the judiciary alike. 

The adoption of the constitution marked a significant and irreversible moment in our people’s march towards a united, non-racial, non-sexist and democratic South Africa. Our constitution did not only codify the norms and procedures of our democracy, but it also gave an expression to the aspirations of the majority of South Africans thus becoming an integral part of who we are as South Africans.

The diversity of the parties that are represented here today in this parliament is a testament to the enduring legacy of what the constitution has made possible in the ever-evolving political landscape of our country. The parties represented here today were freely elected in open, free and fair elections representing the will of the people giving life to the expression the people shall govern which is one of the cardinal pillars of our constitution and democracy. 

To truly appreciate how high we have risen as a people in transitioning from apartheid to democracy and adopting a constitution, it is important to understand the depth from which we come from.

During the more than 350 years of colonization and apartheid there had germinated in our country race-based dehumanization and systematic dispossession and exclusion of the majority from political and economic participation.  

The Apartheid system from which we emerged, was grounded on race-based hate and white minority rule. We lived in a country whose economy was defined by misallocation of resources in that the talents of the black population were never given the opportunity to be fully expressed in the mainstream economy thus ensuring that the economic performance of the country was always suboptimal. 

Not only was there exclusion of the majority of the population from the mainstream economy, but there was deliberate and systematic impoverishment of the black population through dispossession and unfair labor practices. 

As Justice O'Regan observed in Brink v Kitshoff NO (1996), black South Africans were confined to inferior facilities across nearly ninety percent of the landmass, classified as 'white', not by accident, but by deliberate legislative design. The administration of justice reflected this design with equal deliberateness. 

Eleven separate justice departments operated across the former South African Bantustans (Transkei, Bophuthatswana, Venda, and Ciskei) and homeland territories. This fragmented structure was profoundly consequential for access to justice. It meant that access to justice was racially determined, rights were selectively enforced, and that the rule of law served the interests of a minority while systematically excluding the majority.

Thirty years after its adoption, an assessment of what the drafters of the constitution sought to achieve and how the constitution has performed is critical. 

Broadly speaking, our constitution was drafted to achieve peace, unity and stability after many years of painful and violent struggle and secondly, to lay a foundation for a transformation of the South African society so as to 

“Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”. 

The drafters of the constitution sought to negate the many years of racial segregation and institutionalized racial hierarchy, and in that quest, they were inspired by the idea well-articulated by Amartya Sen who in his book titled “The Idea of Justice” stated that: “The notion of human right builds on our shared humanity. These rights are not derived from the citizenship of any country, or the membership of any nation, but are presumed to be claims or entitlements of every human being. They differ, therefore, from constitutionally created rights guaranteed for specific people”.

An honest assessment can only be done by looking at the provisions or elements of the constitution and the concrete realities of the South African society. Except for sporadic and infrequent ill-informed discontent with our constitutional democracy, the constitution has, in large measure, achieved the goal of creating a stable and peaceful united country. 

It was all of us South Africans who said “South Africa belongs to all who live in it, Black and White”. 

South Africans refused to let the painful past get in the way of the creating a future in which all South Africans, black and white, could live together and build an equitable and prosperous country. Our judiciary has been consolidated into a unitary hierarchical structure that has asserted its independence with decisiveness and stood the test of time as a protector and defender of people’s rights. 

It is the transformation of the South African in all its dimension, all of which can only be realized progressively, that we must concentrate our examination. It is also precisely on the transformation project that our constitution reveals its brilliance and foresight. 

The drafters of the constitution had the foresight not to produce a static document, but rather a living framework that can respond to an ever-changing legal, social, and political context and the growing material needs of the population.

The preamble of the constitution also makes an undertaking that under the democratic dispensation all of us will strive to “Improve the quality of life of all citizens and free the potential of each person”. Those who were systematically denied access to property, education, and the basic conditions of a dignified life expected that their material circumstances would shift towards the enablement of a better life. 

Yet it is on this very aspect that the constitution has had its fiercest critics. Those who are yet to enjoy the democratic dividend view the constitution as a betrayal of people’s aspirations. 

A week ago, we launched the year long commemoration of this important anniversary. During the launch Professor Sarah Moseatsa, the chief executive officer of the Human Sciences Research Council, shared with us findings of their research published in a book under the title “The Future South Africa We Want: Democracy@30”. 

The book’s collection of research findings captures thirty years of democracy through the lived experiences of diverse South African communities. Moving from QwaQwa to Vuwani, Soweto, Langa, Luka, Platfontein, and beyond, the book focusses on citizens' reflections on progress, frustration, resilience, and aspirations for a better future. 

The narrative blends grassroots voices with scholarly analysis to offer a textured portrait of South Africa's democracy as both promise and struggle, framed within broader African and global contexts.

The study revealed varied and interesting findings. In QwaQwa the study found that “Democracy has been met with mixed feelings, and while the benefits of democracy have greatly improved the lives and livelihoods of many people, this is also met with differing voices on the effectiveness and experiences of democracy…The high levels of corruption in QwaQwa, the high unemployment, limited opportunities, closure of public schools, infrastructure decay and the closure of firms have contributed to mixed feelings about democracy.”

In Soweto, Orlando, “some of the young people have benefitted from democracy while others have not. Some have lost hope, turning to substance abuse, whereas others continue searching for opportunities to better their lives.”

In “Wentworth residents saw substantial improvement since 1994 were gender equality and the relations between the different population groups. Opportunities for women had improved dramatically, though many believed the rise in gender-based violence was a consequence of gender equality in a community where many men were unemployed. Residents also noted increased mixing of the population groups through interracial marriages, settlement patterns, and social activities, such as sports.”

The chapter on Bill of Rights was framed by the drafters so that it treats socio-economic rights just as important as civil and political rights. The right to equality, to human dignity, to privacy, and to freedom of expression are articulated alongside the rights to housing, healthcare, food, water, and education. 

Our constitution has made it possible for us to pass laws and create policies that can translate the transformational aspiration into a reality. 

It is evident from these studies that life experiences in various communities are a testament that democracy is not a destination. It is a lived and continually contested project. The reality is that the law has advanced with considerably greater speed and clarity than the material reality it was designed to transform, not because the framework is wanting, but because the administrative and financial conditions necessary to give it full effect have not been consistently sustained.

As I have said we have already launched a yearlong commemoration of the 30 years of the adoption of the constitution which will be undertaken under the theme “30 YEARS OF CONSTITUTION: ONE CONSTITUTION, ONE NATION REFLECT. RENEW. RECOMMIT.”. 

Just like the constitution making process, the national commemoration we envisage, will be an inclusive initiative involving multiple stakeholders, including government departments, Chapter 9 institutions, civil society, organised labour, business, traditional and religious leaders, youth formations, and educational institutions. 

We will also oversee this process through the National Day celebrations across the country to ensure that we reflect.

We have also taken a decision that will work alongside the conventions that have been taking place, but also in terms of the work that is conducted by the Deputy President of the National Dialogue, so that we can be able to have these conversations across.

Cabinet approved a concept document that outlines how this yearlong celebration is going to unfold and an IMC that will oversee this work chaired by the department of Justice and Constitutional development has been established. 

The programme will include public dialogues, civic education, cultural events, youth engagements, symbolic events at historic sites such as Sharpeville and Constitutional Hill, and other community driven initiatives to deepen constitutional awareness and social cohesion. 

We will also this year host an International Conference on Access to Justice as part of reflecting on the journey travelled, and renewing our Commitment to the principles of our constitutional democracy.

And I must say, one of the things that we are urging is the reading of the Preamble at every event by government, but also reading of the Preamble by our schools, so that all young people as well can understand the importance of our Constitution. 

As I come to my conclusion let me remind you of the words of former president Nelson Mandela, who on that day of the adoption of the constitution said: 

“The new constitution obliges us to strive to improve the quality of life of the people. In this sense, our national consensus recognises that there is nothing else that can justify the existence of government but to redress the centuries of unspeakable privations, by striving to eliminate poverty, illiteracy, homelessness and disease. It obliges us, too, to promote the development of independent civil society structures.”

It is time for all of us to reflect on this 30 years of our constitution and recommit to “improve the quality of life of the people” and recognise that “there is nothing else that can justify the existence of government but to redress the centuries of unspeakable privations, by striving to eliminate poverty, illiteracy, homelessness and disease.” 

We celebrate the 30 years of the constitution not because it is perfect but it is a vital framework for the sustenance of our democracy, progressive realization of human rights, and accountability.