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A Progressive Constitution

South Africa’s Constitution is considered among the most progressive in the world. Ryland Fisher considers the reasons.

While South Africa’s Constitution has been heralded for containing rights not found in many other constitutions in the world, it has come under pressure in recent years, mainly from those who were found by courts to have transgressed the Constitution.

Minister of Economic Development, Ebrahim Patel, feels that more needs to be done to make ordinary people aware of their rights enshrined in the Constitution.

“At the foundation of the South African model of development is the Constitution – deeply empowering and espousing fundamental human values. It is the common frame within which we can organise our lives and the pacts necessary to secure economic growth and transformation,” said Patel.

Minister Ebrahim Patel. Pic Martin Rhodes. © Business day

Works for all

“The Constitution was fought for in townships and villages, in factories and universities; that connection must not be lost and we have a responsibility to ensure that each generation sees that its fundamental values are worth protecting and defending,” says Patel. “This requires that we make progress to achieve the Constitution’s empowering vision of a society that is equitable and based on social justice. The Constitution belongs in the townships, not in a museum. It is a living document, a source of oxygen for the society, not a monument or a waxwork.”

Chris Nissen, Western Cape Commissioner for the South African Human Rights Commission, believes the Constitution is special because it tries to heal the divisions of the past and improve the quality of life and free the potential of all South Africans.

“South Africa has the best Constitution in the world. It is hailed by many and used as an example for many other countries. It is a model for law and constitutional experts. It seeks to establish a society based on democratic values, social justice and fundamental human rights.”

Based on best practice

Lawson Naidoo, Executive Secretary of the Council for the Advancement of the Constitution, believes the Constitution is lauded because we have had the benefit of learning from the experiences of others around the world.

“The Constitution assimilated best practice from across the world. It included new generational rights, including social and environmental rights.”

Stanley Henkeman

Stanley Henkeman, Executive Director of the Institute for Justice and Reconciliation, said that the South African Constitution is often equated with the Canadian constitution in terms of being progressive.

“It could possibly be linked to a strong acknowledgement of a shameful past and an unequivocal commitment to justice, inclusion, good governance, and the Bill of Rights. There are many similarities between the Canadian Statement of Reconciliation and the preamble of the South African Constitution.”

Inclusive and participatory

Edward Shalala, Director of the Centre for Constitutional Values, says that, “At the time it was adopted, the South African Constitution contained a number of rights, obligations and provisions that were unprecedented, either because they were being included in a constitution for the first time or because they went further than had been the norm. Some provisions in the Bill of Rights apply not just between the state and private persons but also between private persons. The clause on equality contains strong provisions including the prohibition of discrimination on the basis of sexual orientation; and the Bill of Rights includes socio-economic and environmental rights.

“The Constitutional Assembly implemented a massive public participation programme throughout the country and received over two million submissions. It established a qualitative global benchmark for public participation in policy and law-making processes.”

The Constitution, which was born out of a process that took into consideration the views of ordinary South Africans, contains clauses that outlaw racism and sexism and seeks to guide us to a country that will be decidedly better than what we had under apartheid.

Image: ©iStock - 1047737600

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