Speech by Professor Kader Asmal, M.P. at the debate on the President's State of the Nation Address at the National Assembly

A Better Place in Which to Live”

12 February, 2008

The Speaker, Mr President, hon. Members and Comrades

In quoting from the opening lines of Charles Dickens' A Tale of Two Cities, the President tried to show that in real life it is not a matter of choice of extremes -  'wisdom – foolishness, light and darkness – but a possible reflection of a deep sense of unease, about where the country will be tomorrow'. 

But, Madam Speaker, there are those who, like the writer of an extraordinary letter to the Weekend Argus on 9 February, who from the deepest well of his hatred could write:

'The world should stop caring about what happens on this continent and allow it
to self-destruct'. 

Africa, it seems, including South Africa, is a terminally-ill patient.  In other words, we are facing what the Germans call 'gotterdamerung', the twilight of the gods, with decay, death and destruction confronting us.

Well, he and his likes and some political commentators, need to be reminded that the past is a foreign country; they do things differently there.  Our country in recent decades is certainly proof of the accuracy of the first part of the opening line of L.P. Hartley's novel of nostalgia, The Go-Between, whatever about the second part.  That this country has changed out of all recognition is a truism of daily discourse; whether it has changed for the better is a question whose answer usually depends on personal circumstances, preferences, beliefs and status before 1994.

It is a constant of human nature to view the past through a nostalgic haze, even, or perhaps especially, a past we have not experienced ourselves.  As well as being a sunnier place, it is frequently seen as a simpler, more contented and even more caring place, partly thanks to the broad brush strokes of historical narratives which make past developments appear much clearer than the endless uncertainties and conflicting arguments of history in the making in the present.

Overall, though, for the vast majority of our people, there is no need to remind us of what we have left behind.  But for the small minority of the permanently disaffected, we need to remind ourselves that South Africa is now a much better place than the 'other country' used to be.

The better place is not to be defined simply by the obvious signs of physical change: how many of the 16 million people in 1994 who did not have access to water do so now, to the homes and hospitals and schools built, or the roads in townships and other material changes, such as the most highly developed social security system in the third world.  No, it is the removal of the stifling suffocation of racialism, of the vindictive use of force and violence against the majority, of the authoritarianism, not only of the illegitimate state but also of private power.

It is more than 'delivery'.  Has their lives changed?

Yet, there are some who look back on the past with nostalgia, contrasting it with the works of a black-dominated government and the uncaring anonymity of present-day urban life, with electricity cuts and fortress-like homes.

The past, of course, is a country in which we do not have to actually live anymore, just visit it in our imaginations.

The most important development making South Africa a better place to live in and to possibly love,  is the Constitution, a guaranteed contract between South Africans as how to organise our public and private lives.  The Constitution, the result of an unprecedented national conversation among South Africans, which together with the Bill of Rights, is the bedrock of our freedom.

It is therefore appropriate that I should refer to the anxiety identified by the President about people who '… are worried whether we have the capacity to defend the democratic rights and the democratic Constitution which, were born of enormous sacrifices'.

Do we have the capacity?  The answer must be a resounding yes.  The Chief Whip of the ANC in the National Assembly last week reported to our Caucus that the recent ANC Lekgotla reconfirmed our commitment to building a caring society through, among others, the strengthening of the people's institutions of governance and the protection of their integrity.  For this to happen, Parliament will have to play a greater role – ensuring that the constitutional settlement of 1996 is fortified.  There are many ways of doing so.  It will be Parliament which will have to take the final decision concerning the suspension of the National Director of Public Prosecutions, it is Parliament that will have to ensure, in relation to the prosecution of the National Commissioner of Police that the investigation and prosecution of high status people or very serious crimes is conducted by elite and highly professional law enforcement agents.

I want therefore to look at the governance aspect of the National Assembly's supervisory function.

Central to the effective functioning of our democracy and as part of the separation of powers is a truly independent judiciary.  Our national conference has rightly made the case for the transformation, restructuring and training of a united judiciary but as in all aspects dealing with constitutionally protected persons or entities such as the press, changes will be consistent with the Constitution and in consultation with those affected, especially the judiciary.

The idea of consultation is not an add-on to the work of the Executive or of Parliament.  It is constitutionally enjoined under Section 59(1) of the Constitution that the National Assembly 'must facilitate public involvement in the legislative and other processes of the Assembly and its committees'.

On at least two occasions, Parliament has been found wanting by the Constitutional Court on this score.  Consultation involves a degree of openness to countervailing opinions.  The issues arising out of Khotsong and Matatiele (not ignoring the politically-motivated and organised violence in Khotsong) might have been dealt with more differently if the National Assembly had been more assertive in identifying and responding to the grievances – however misplaced – of the inhabitants of these towns.

If Parliament is to be the effective guardian of the Constitution, then it must be more assertive in the scrutiny of legislation.  Policy, as we know from the Constitution (section 85) is the prerogative of the Executive where it is charged to 'develop and implement' national policy.  But Parliament must insist that when legislation is introduced, the constitutional implications should be clearly spelt out because every piece of legislation has some constitutional implications.  I recall that this was not adequately done in the anti-terrorism legislation so that the relevant portfolio committee had to recast the bill.

Also, for the sake of public understanding and the edification of Parliament, departments must give up the current gobbledygook style of writing memoranda and drafting legislation and go back to the plan English approach of our much-praised Constitution.

The idea of parliamentarians having a custodian role concerning the Constitution arises from the oath or affirmation they made when they became members.

I don't know Mr George Boinamo who has been described as the DA spokesperson on education.  He must have been asleep when he swore that he would obey, respect and uphold the Constitution and all other law.  I say this because the anonymous and honourable Boinamo, in opposing the idea of a national pledge proposed by the President to be recited by school children made some illiterate political remarks and then added: that he rejected the idea of reciting or swearing an oath to the Constitution because 'not everybody supports all the laws of the Constitution'.

I very much hope that Mr Boinamo has recourse to the lost cause of those who say that they were misquoted.  Otherwise, the leader of his party will have to draw his attention to (i) not taking his oath seriously, and (ii) being in contempt of the Constitution, which no member should be.

I want to look at an area of our life which we tend to overlook or ignore or be embarrassed by.  What is a South African?  How come 90% of those canvassed take pride in being South African according to the mid-term review published recently by the Executive?

The issue of national identity has become a matter of some political importance, particularly after the dreadful events of September 11, and the subsequent breakdown in self-confidence in a number of first-world countries.

When we talk or write about conflicts in today's world, the word identity frequently occurs.  Be it à propos of former Yugoslavia, Canada, Ireland, Britain after 11 July 2005, the Netherlands, Belgium … identity seems to provide a simple explanation of those conflicts:  people are assumed to belong to a solid, immutable group which responds as one if threatened or ill-treated. Identity implies uniqueness and sameness.

Nothing could be further from the truth.

What attracted me to this debate was the recognition in our Constitution that citizens here often have multiple loyalties, based on identities that may differ from each other, and even be contradictory.  In other words, are our people comfortable with the Constitution's protection?

This is in contrast to some other jurisdictions where the good sense that prevailed before has been replaced by demands for the recognition of the alleged core values, largely of a fictitious nature, of a society to which everyone, especially immigrants, must subscribe, in order to build a uniform identity, to assimilate, in other words.

In South Africa, under apartheid, the core value system of separation based on race destroyed any chance of the majority having a sense of belonging.
So, in order to ensure that separateness was replaced by unity, we, the lawyers in the African National Congress, looked at this matter in 1988 and proposed, in the seminal document which formed the basis for subsequent negotiations with the apartheid regime, that

'It shall be state policy to promote the growth of a single national identity and loyalty binding on all South Africans.  At the same time, the state shall recognise the linguistic and cultural diversity of the people and provide facilities for free linguistic and cultural development'.

We soon realised though that a single national identity could not be imposed by diktat, as Milner tried, and that civil war could result if such a concept had to be 'binding on all South Africans'.  So we replaced the bogus nationalities created by apartheid with a single citizenship for all South Africans, a revolutionary step which we hoped would provide a basis for a durable peace and an understanding of our common humanity.
We hoped that the 'core values of our Constitution – liberty, equality, justice and dignity, which do not belong to any one culture, would provide what the Irish writer, Fintan O'Toole, has called 'a map of integration, setting out the relationship between rights and duties in a way open to everyone'.  I think we have succeeded in this aim of building a durable peace, based on integration, rather than assimilation.

I want to reflect today on how we in South Africa – a country which as you well know for so long denied the humanity of most of its people – have sought to construct the very antithesis of apartheid: a politics of humanity. We have done so, as I will argue, by infusing our constitutionalism with a cosmopolitan, multicultural ethic. I intend also to argue that this ethic can best prompt reform at an international level as well, so hopefully securing, at both domestic and global level, a durable peace.

In South Africa, we have attempted to secure this politics not by denying our differences: the Constitution, the founding instrument of our democracy, guarantees rights which best protect our freedom to be individuals, unlike any other, but also guarantees the rights we enjoy only in and through our communities – that protect our enjoyment of the society of those like ourselves. In so doing we continue a tradition that saw the Freedom Charter, in the midst of the madness of apartheid, declare that all South Africans had the right to their own languages and to develop their own cultures and customs.

This determination to celebrate rather than abolish difference, may seem counter-intuitive. It is not long since we emerged from a past in which our differences were our defining feature and the basis of separation, the basis on which the state determined the rights, resources and level of care we were due. The multicultural vision embraced by South Africa's constitution has been criticized by some, and it has been said that rather than unite the disempowered, multiculturalism emphasizes social divisions and exaggerates cultural differences among them. It would follow that the politics of identity is counter-productive to nation-building.

But this view is wrongheaded. Multiculturalism is necessary – not only because we recognise that life in the contemporary world makes for multiple allegiances and loyalties that are enriching and that individuals require different contexts, inputs and life choices to develop their fullest abilities. We value multiculturalism because we want to preserve a wide range of human conditions, allowing free people the best chance to make their own lives.  Tolerance of each other should also extend to immigrants, refugees and to visitors.  Xenophobia reflected in the raid on the Methodist Central Church and the attacks on Somalis should be condemned by this House, and all other parties.

One of the fundamentals of good governance is the existence of an effective system of checks and balances. The constitutional doctrine of the separation of powers is not an obstacle to efficient government, as alleged occasionally.  Its rationale is to ensure that one organ does not encroach on the competence of the other.  In our country, the institutions established in terms of chapter 9 of our Constitution as well as other constitutional bodies are also an important part of our system of checks and balances, democracy at work, as it were.

We are exceptional in secreting these important bodies in the Constitution.

Our Constitution is not designed simply to restrict governmental power and authority.  It is also meant to empower citizens and to ensure transparent and fair governance.  In 2006, spearheaded by the Speaker, our Parliament took the bold step to review the relevance, effectiveness and efficiency of these institutions.  As these institutions are accountable to the National Assembly, it was deemed appropriate that this responsibility vests with Parliament.

I had the unenviable task of chairing the multiparty ad hoc Committee established to perform this function.   The challenge for Parliament now is to systematically engage with the issues contained in the Committee's report.  Indeed it is imperative that Parliament leads a national debate on the Chapter 9 and associated institutions in a lively and robust fashion as it is clear from the Report that some of these institutions are not working well, or not at all.

It is important that the debate is spared parochial attitudes to allow the freedom to step on each others toes on certain issues, if necessary.  These include, amongst others, budget processes, financial management, reporting and institutional governance and oversight by Parliament.

In the interests of good governance, 'territorialism' must be abandoned to give way to creative solutions for an improved system.

Given the renewed vigor with which the legislature is emphasising its oversight function, evident these past two years, the time is right for us to ensure that this august House has all the levers at its disposal to conduct such a role effectively.  The Chapter Nine institutions, and our relationship with them is a fundamental bedrock of our oversight function.  In a nutshell we must strengthen them to strengthen ourselves as a House and to ultimately enhance our constitution's vision for the role that they could and should play.

There remains a huge agenda for change to deal with removing fear about the future, combating poverty, alienation and discrimination, and to foster an agreed sense of national identity.  So we must claim tomorrow as another country and dream and agitate.  Remember Ben Okri's injunction.

'They are only the exhausted who think
 That they have arrived
 At that final destination
 The end of the road
 With all their dreams achieved
 And no new dreams to hold'.