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Debate on the 20th Anniversary of the Constitution and Human Rights Day by Dr. Mathole Motshekga, MP

"Racism and Human Rights in Constitutional Democracy"

15 March 2017, National Assembly

Honourable Speaker
Honourable Ministers
Honourable Deputy Ministers
Honourable Guests

The celebration of our Constitution and human rights take place in the year that we celebrate the life and times of our icon, Oliver Reginald Tambo, affectionately known as Oliver Tambo (OR).

In particular we must celebrate O.R's contribution to the development of our constitutional jurisprudence and the Bill of Rights. O.R was informed by the human rights culture developed by his fore-bearers of the following documents:

  • The 1923 ANC Bill of Rights which reclaimed the African humanity (ubunthu/Botho) and the right of African people to participate in the economic life of the country.
  • The African Claims which reclaimed the African right to self-determiniation and human rights.
  • The 1949 Program of Action which reclaimed the African land and its natural resources.
  • The 1954 Women's Charter and 1955 Freedom Charter.

O.R observed quite correctly that the fundamental problem facing our nation is racism. In all the phases of the development of the South African state racism has served three principal purposes:

  • Firstly, was to justify the seizure of our country, our land and wealth by the colonizers.
  • Secondly, was to establish the basis for the transformation of the dispossessed millions of our people into instruments of labor for the enrichment of the colonisers.
  • Thirdly, was to legitimize the exclusive concentration of political power in the hands of the colonial and settler minority.

The 1994 democratic breakthrough transfer political, not cultural social and political power.

We have now entered a transitional period to a cultural, social and economic transformation. There are serious constraints to this transition. The constraints on this transition are deeply embedded in our history of racism and colonialism.

O.R Tambo cherished a united democratic, non-racial, non-sexual, and prosperous South Africa in which the value of every citizen is measured by our common humanity (ubunth/Botho).

O.R understood and described the enormity of the problem in the following terms:

  • The Kabwe Consultative Conference held in Zambia in 1985 laid the foundation for the achievement for the democratic future envisaged by O.R.
  • The conferenced took place at the time when pressure was increasing on the Apartheid regime to enter into negotiations with the National Liberation Movement.
  • O.R realized and acknowledge the need to develop a post-Apartheid South African Constitutional policy informed by the human rights culture. To this end O.R established the Department of Legal and Constitutional Affairs and appointed Dr. Zola Skweyiya as the head of the committee.

The DICA moved swiftly to mobilise the Democratic Lawyers Movement in the country which saw the emergence of the National Association of Democratic Lawyers (NADEL) in 1986.

In his opening address to parliament in 1986, President P.W Botha responded to this development. He stated that the government was committed to: "(the) Sovereignty of law as the basis for the protection of the fundamentals rights of individuals as groups." The statement laid the foundation for the doctrine of human and group rights.

In the same year (1986), Kobie Coetzee, Minister of Justice, instructed the government's Statutory Law Commission to make recommendations about the definition and protection of group rights and to consider the possible introduction of a Bill of Rights.

A working group under the direction of Justice P.J.J. Oliver was deputed to undertake the task and members of the general public as well as expert lawyers were invited to submit views.

In the same year (1986), Prof. Johan van der Westhuizen, after consultation with the ANC in Lusaka, organized a symposium on human rights. The symposium discussed the question of human and group rights proposed by President P.W Botha. At the conference the Democratic Lawyers Congress, led by myself and young black lawyers, formed the Anti-Bill of Rights to oppose P.W Botha's constitutional reforms and the group rights ideology in particular.

In 1987 the ANC adopted the statement on negotiations which also rejected the Apartheid regimes' group rights ideology. The same year (1987) the ANC and members of NADEL and Black Lawyers Association (BLA) attended the conference called United Against Apartheid in Arusha, Tanzania. The conference discussed, inter alia, the Legitimacy vs Legality of the Apartheid Constitutional order.

In 1988 the ANC published the Constitutional Guidelines for a democratic South Africa which were profoundly influenced by the Freedom Charter.

The following year the South African Law Commission headed by Judge P.J.J Olivier produced a draft bill of rights which endorsed basic civic and political freedom and firmly rejected the protection of racially defined group interests - while leaving the way open for the protection of cultural, religious and language rights.

But F.W de Klerk who became state President in September (1989) sidelined Judge Olivier's report and together with Gerrit Viljoen, Minister of Constitutional Affairs, continued to press for power-sharing mechanisms rooted in group rights.

Informed by the ANC human rights culture, the ANC produced the Harare Declaration which provided the basis and the roadmap for a negotiated political settlement.

The democratic breakthrough of 1994 demonstrated the capacity of South Africans to work together and find homegrown solutions to their problems. The South African Constitution adopted in 1997 as been correctly hailed as one of the best in the world.

The two main fundamental issues that the constitutional negotiations addressed were those of racism and land redistribution and restitution.

Despite the fact that the constitution envisages the establishment of a non-racial society failed and/or neglected to pass legislation criminalizing racism which remains a crime against humanity.

The limited financial resources, land restitution disputes, the legal and constitutional constraints slowed the land redistribution and restitution process.

This slow process forced some, among other, to call for the amendment of section 25 of the Constitution to provide for expropriation of land without compensation. There are some among us who think that Constitutional amendment is a matter of numbers.

The multi-party Conference recognized and acknowledged that we are a deeply divided society and therefore devised mechanisms to win the confidence of all South Africans, both black and white, in the new Constitutional democracy. For this purpose, the Constituent Assembly adopted an entrenched Bill of Rights containing a property clause.

There are increasing calls in this House for the amendment of section 25. The Constitution contains an entrenched procedure for amending section 25 to address the imbalances which delay land redistribution and restitution of land. These imbalances are also contained in the Land Restitution Act which favours land owners rather than Land Claimants.

In South Africa there is no rational basis for land invasions because the Constitution provides avenues for reconsidering the June 1913 cut-off date, the onerous requirements for Land restitution.

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