Your Excellency, President Joyce Banda,
Honourable Minister of Justice of the Republic of Malawi, Hon. Ralph Kasambara SC,
Other Government Ministers from our region,
President and Members of the Executive Committee of the SADC Lawyers Association,
President of the Malawi Law Society,
Members of the Judiciary in the SADC countries,
Ladies and Gentlemen and friends:
First of all I would like to thank our Lawyers’ Association for inviting me to address this important meeting of the eminent lawyers of our region.
I must say that the theme you chose for this Conference, “Constitution Making and Constitutionalism in SADC: Opportunity or Illusion for Justice, Peace and Shared Values?” certainly calls for careful reflection.
As a non-lawyer myself, I hope you will forgive me for answering the question you have asked upfront, before setting out my full argument, as you lawyers are wont to do. So, please allow me to breach legal rules just for today.
In any case, I believe that the question you have posed to yourselves at this Conference is both legal and political.
You ask whether Constitution Making and Constitutionalism present us with an opportunity for Justice, Peace and Shared Values. My immediate answer is – certainly, yes!
And if I am asked if the Constitution Making process is but an illusion in respect of giving citizens the opportunity to reflect on Justice, Peace and Shared Values, my immediate answer would be – certainly not!
Constitutions are reflections of the best that brings us together as nations. Properly crafted, the Constitution of a country is that one codicil whose provisions are embraced, protected and defended by all citizens, regardless of their political beliefs, race, class and gender divides, age, ethnicity and religious belief.
I can say without any hesitation that it is a rare privilege to have the opportunity to participate in the birth of one’s nation, which includes the process of consulting on, drafting and finally adopting the founding document, the Constitution.
It is true that in some of our countries the processes leading up to the adoption of our Constitutions have faced some challenges. However, the opportunity to adopt a new founding document that codifies a nation’s core values, aspirations and principles, is one that all of us should embrace.
The Constitution is the one document that all citizens should protect at all times. This can happen only if both the process leading to the adoption and the contents of such Constitution are as inclusive as possible.
While the end product may be excellent, difficulties in holding the nation together may arise if the process that gave birth to the Constitution was not inclusive.
The importance of rallying a nation together to agree on common values, aspirations and principles has been brought into sharp focus by the events in various African countries such as Côte d’Ivoire, Libya, Tunisia and Egypt.
We have seen how easy it is to tear nations apart by abusing the diversity within our nations, such as those based on language, religion, ethnicity and geography, as happened in Somalia.
The Constitution of a country is the founding document in which we lay down the rules that govern all of us, rich and poor, male and female, young and old, black and white. It sets out what brings us together, not what divides us. It captures our core values, and it sets out a path that we seek to follow to create a better life for our people.
I am told that in Law School you are taught that a Constitution is like a love letter. It expresses the deepest feelings of a nation about itself in the same way that lovers express their deepest feelings in love letters.
Writing about love, the English playwright, William Shakespeare, says in one of his Sonnets:
“Love is not love which alters when alteration finds, or bends with the remover to remove…It is an ever fixed mark that looks on tempests and is never shaken…”
Constitutions are where we give expression to the deepest feelings of our people, where we put down that “ever fixed mark that looks on tempests and is never shaken…”
The SADC region has 15 member States and is home to an estimated 277 million citizens, who speak multiple languages.
Thus the question arises – can the countries of and the peoples within SADC lay claim to a common SADC value system? Is it possible to identify that ‘ever fixed mark that is never shaken?’
The Preamble of the SADC Treaty states, among others, that:
“Our common cultural and social affinities, common historical experiences, common problems and aspirations, remain a firm and enduring foundation for common actions to promote regional economic welfare, collective self-reliance and integration, in the spirit of equity and partnership. This firm foundation is necessary for the attainment of our cherished ideals of economic well-being, the improvement of the standard and quality of life, freedom and social justice, and peace and security, for the peoples of Southern Africa.
“We, the Heads of State and Government of the Southern African States hereby commit ourselves and our governments to the establishment of SADC to achieve these ideals…We also offer and commend this Declaration to the peoples of Southern Africa, and call upon them to make the same commitment, and to participate fully in the process towards regional integration.
“Furthermore, we call upon the international community to continue to support the efforts of the countries of Southern Africa to realise this ideal”.
The Treaty proceeds to recognise the entrenchment of the quest for democracy and popular participation in the management of public affairs, the arrangement of economic affairs in a manner that enables individuals to take responsibility for improving their own lives and their communities and the concerted efforts that were made to defeat colonialism and apartheid, and to end internal conflicts and civil strife.
The Treaty clearly identifies our common history, and our cultural and social affinities, problems and aspirations as the “firm and enduring foundation for common action”. It proceeds to identify our ideals as the “economic well-being, the improvement of the standard and quality of life, freedom and social justice and peace and security, for the peoples of Southern Africa”.
The Treaty also correctly refers to our common historical experiences, of colonialism and apartheid. Our region experienced some of the most inhumane racist policies that were visited by one human being upon the other. Accordingly, it is not possible to move the region forward towards prosperity without addressing the legacy of those policies.
The Treaty commits the Governments within SADC to the pursuit of policies aimed at “economic liberation and integrated development of the economies of the region”.
I would therefore like to say that the SADC Treaty addresses the important elements that should be found in a good Constitution, these being:
· the identification of common values;
· recognition of our past; and,
· commitment to policies that should take us away from that past, towards social and national cohesion, development and shared prosperity.
A brief review of a few of some of the Constitutions of the region shows that there is a core of common values that runs through them, such as the right to dignity and liberty, to life, although there are differences on the matter of the death penalty, to equality before the law, and related rights.
However, most of these values are to be found in many other Constitutions around the world, which raises the question whether we have been able to use our Constitutions truly to capture the essence of who we are and what we want to be.
I have spoken earlier about how our diversity can at times be exploited against our interest. Building inclusive societies is, in my opinion, one of the major tasks of our generation.
As we celebrate the 50th Anniversary of the formation of the OAU, now AU, we need to ensure that we pay sufficient attention to this matter of building inclusive African societies.
Exclusion, on any basis, including race, gender, class, ethnicity, access to economic opportunity, social standing or access to resources, is a recipe for conflict and instability.
Thus must we constantly strive to build unity, even within our diversity.
I have often been asked whether even the diverse people of my own country, South Africa, can lay claim to a common identity. The question that has been posed is – what constitutes a ‘South African’ identity?
Speaking on the occasion of the adoption of the South African Constitution in 1996, I made an attempt to answer this question when I said:
“I owe my being to the Khoi and the San whose desolate souls haunt the great expanses of the beautiful Cape – they who fell victim to the most merciless genocide our native land has ever seen, they who were the first to lose their lives in the struggle to defend our freedom and independence and they who, as a people, perished in the result…
“I am formed of the migrants who left Europe to find a new home on our native land. Whatever their own actions, they remain still, part of me.
“In my veins courses the blood of the Malay slaves who came from the East. Their proud dignity informs my bearing, their culture a part of my essence. The stripes they bore on their bodies from the lash of the slave master are a reminder embossed on my consciousness of what should not be done.
“I am the grandchild of the warrior men and women that Hintsa and Sekhukhune led, the patriots that Cetshwayo and Mphephu took to battle, the soldiers Moshoeshoe and Ngungunyane taught never to dishonour the cause of freedom.
“My mind and my knowledge of myself is formed by the victories that are the jewels in our African crown, the victories we earned from Isandhlwana to Khartoum, as Ethiopians and as the Ashanti of Ghana, as the Berbers of the desert.
“I am the grandchild who lays fresh flowers on the Boer graves at St Helena and (Bermuda), who sees in the mind’s eye the suffering of a simple peasant folk, death, concentration camps, destroyed homesteads, a dream in ruins.
“I am the child of Nongqause. I am he who made it possible to trade in the world markets in diamonds, in gold, in the same food for which my stomach yearns.
“I come of those who were transported from India and China, whose being resided in the fact, solely, that they were able to provide physical labour, who taught me that we could both be at home and be foreign, who taught me that human existence itself demanded that freedom was a necessary condition for that human existence.
“Being part of all these people, and in the knowledge that none dare contest that assertion, I shall claim that – I am an African.”
The question of how we understand ourselves as Africans and as members of SADC, as reflected in the values that we capture in our Constitutions, should guide the policies that we adopt to move our region towards shared prosperity.
A close look at the history of countries in the SADC region will show that many of them were the subject of extreme forms of colonialism and racism. These systems were implemented through policies of land dispossession, race classification, job reservation, destruction of traditional forms of authority and related practices.
Necessarily, when through the heroic struggles of the people, independent States were born, we would expect to find policies that seek to correct the injustice that was visited upon our peoples.
Accordingly, we would expect to find policies in our Constitutions and laws that seek to correct the issue of land dispossession, and policies that facilitate the participation of indigenous people in the economy.
If we recognise all this, then the matters of land redistribution, indigenisation, black economic empowerment, etc, become a conditio sine qua non (a condition without which) we cannot regain our dignity and identity, and ensure our development.
Accordingly, I believe that you as lawyers must promote such transformation objectives, refusing to protect a system of property relations inherited from our colonial and apartheid past.
Other common values in the Constitutions in the SADC region are the recognition of the need to heal the divisions of the past and build societies based on equality. All this is informed by our particular history.
A look at the Constitutions of Malawi, South Africa and Zimbabwe shows that the institution of traditional leadership is recognised in all three countries. Again this is so because of the history of those countries, where the institution of traditional leadership was almost destroyed.
Traditional leadership is recognised also in the Canadian Constitution, in the form of a constitutional Monarchy. The rights of the Aboriginal Canadians also receive a special mention in that Constitution.
The Constitution of the United States of America, on the other hand, shows that its drafters were pre-occupied with the need to ensure the correct representation of the different States of the Union, while at the same time denying the slaves their citizenship. It also reads like a trade agreement, where taxes became one of the central issues, for example providing in section 8 of the first Article that:
“The Congress shall have power…
”To borrow money on the credit of the United States;
“To regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes;
“To establish a uniform Rule of Naturalization, and uniform Laws on the subject of bankruptcies throughout the United States…”
I cite these examples to show that Constitutions are as varied as the nations that seek to capture their history, their values and aspirations in such a document.
Having understood that Constitutions serve to recognise the past, lay a foundation for the future of nations and encode the values, aspirations and principles, I fail to understand the basis of some of the criticism directed at the contents of Constitutions that seek to do just that, such as provisions relating to land redistribution and indigenisation.
What I am asking you as our leading lawyers is whether you have engaged sufficiently with the masses of our people to explain why it is necessary to include certain provisions in our Constitutions, to which some with loud voices have objected.
For you to be able to discharge this responsibility, you will have to review the particular history of each of our countries. Further, in your quest to explain why we have chosen certain paths to take our Continent forward, you will also have to understand the project we have set ourselves to renew Africa.
With this engagement and understanding, you will be in a better position to use your specialised training to promote the renaissance of Africa.
This year we are celebrating the Golden Jubilee of the OAU, now African Union. The African Union has identified certain values that are shared among Africans.
These are, at the State and regional level, sovereignty and the interdependence of States, adherence to the rule of law, democracy and representation of the popular will, development, shared prosperity and care for the weakest, self-reliance (economic and social), justice, law and order, equity and equality, national self-determination, solidarity among the States, protection of the environment, stability, peace and security.
At the individual level the Union identifies values such as the basic right to life, identity and opportunity, tolerance, participation in governance, dignity, fairness, respect for age, integrity and cultivation of the spirit of community.
After the adoption of these shared values, the AU started a process that the Union has termed the Shared Values Conversations. This process is meant to engage with all citizens in every corner of the African Continent. I hope that you will all participate in this process.
I hope that the Shared Value Conversations will help to make certain that we continue, in the words of the Constitutive Act of the African Union, to recall “the heroic struggles waged by our peoples and our countries for political independence, human dignity and economic emancipation”.
I hope the Shared Value Conversations will continue to remind us that we said, in the Constitutive Act, that we are “guided by our common vision of a united and strong Africa and by the need to build a partnership between governments and all segments of civil society, in particular women, youth and the private sector, in order to strengthen solidarity and cohesion among our peoples”.
In the end what I am trying to say is that Constitution Making and Constitutionalism in our SADC region gives all of us an opportunity to act together to determine our common destiny, based on Justice, Peace and Shared Values.
Thus must all of us see ourselves and act as part of a people’s movement in our region in defence of Constitutionalism and genuine respect by all our Governments of the values and perspectives that should be contained in our Constitutions, which would also be consistent with the shared all-African values identified by the African Union.
All of us gathered here today belong within the African elite. As this elite, we always face the inherent danger of detachment from the masses of the people in our countries.
I say this to make the point that I am certain that the people’s movement in defence of Constitutionalism I have mentioned has every possibility of success.
This is because the conscious masses of people in our region value highly the role of our Constitutions as guarantors of the better life they seek, and the values which your Association espouses.
You and me as part of the African elite must integrate ourselves with the masses of our people, thus to guarantee that, because of the strength of the mass-based progressive forces in our region, we transform the dream contained in our Constitutions into reality.
I hope that the discussions at this Conference will contribute to the further entrenchment of the project to build a united and strong Africa that will play its rightful role in global affairs, with all our States governed on the basis of Constitutions that both recognise our past and point the way forward away from that past.
I wish you successful deliberations.
I thank you for your attention.