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Perfectibility and Corruptibility

FROM TOWARDS A NEW CONSTITUTION FOR SOUTH AFRICA: ADVANCING HUMAN RIGHTS IN SOUTH AFRICA | OXFORD UNIVERSITY PRESS | 1992

The human rights concept is based in its substance on human perfectibility and in its procedures on human corruptibility. That is why constitutions are optimistic and pessimistic at the same time. They encourage us to choose the best among us as our leaders, but prepare us for the fact that they may turn out to be the worst.

It cannot be repeated too frequently: all constitutions are based on mistrust. The more devoted we are to our leaders and our organisations, the more we have to be constitutionally mistrustful of them.

It is not only the rascals, corrupt persons and assassins from the past whom we have to mistrust. Nor do we merely have to beware of the millions of so-called ordinary people who have become so steeped in the values and assumptions of apartheid society that they automatically replicate them in slightly disguised form in the post-apartheid world.

We have to mistrust ourselves.

This is not to say that we must see our role only as that of critics permanently in the opposition. Someone has to take responsibility for helping our country regather its strength and begin to function in a decent way for the benefit of all. Nor should any of us regard ourselves as being somehow more holy, more sensitive, more progressive than anyone else.

We do what we are good at. Some of us are good at picking up the human dimension of a problem, at sensing dilemmas and difficulties. We enjoy searching through words and phrases till we find the ones we want. Sometimes we even invent new words if that helps us. We are not afraid to be called romantics and idealists. We know that we can afford to be soft because there are enough hard people around. We judge no one else, in fact we admire persons who have qualities opposite to ours.

What matters is that we do not pretend iron qualities we do not possess, nor do we eliminate any special characteristics we might have for the sake of blending unnoticed into the collective. Rather, we express our thoughts as they come to us. The pleasure lies in placing them in the mix of ideas, sure that they will interact and clash with the thoughts of others. We take our stand on the right to enjoy the right to be wrong; that is, the right to have the satisfaction of advancing an idea and seeing it refuted by a better one.

We are not against leadership, not against government. We are anxious to empower a new government to undo the damage of past governments and to undertake the responsibilities of all governments everywhere in the world to respond to the needs of citizens.

At the same time, we must ensure that the new government functions well and fairly, that it does not become a new source of oppression, alienation and abuse. Oppression can come under any slogans, in any colours, and with any anthem.

No one, neither king nor freedom fighter, has any divine right to rule. No one is automatically immune to the seductions of power.

Good leaders are conscious of this and struggle for good constitutions, aware of their own fallibility.

The biggest contribution our generation can make will be to provide an enduring link between our past aspirations for freedom and the lived reality of future liberty.

The Constitution should be a glittering shield in which we all see our faces reflected. It is our constitution, for everyone, protector of the weak as well as of the powerful, of the former oppressed and of the former oppressors. It lays down the fundamental terms on which we all live together as equals and compatriots in the same country. It is the document which establishes that everyone matters, everybody counts, that no one is born worthless, or to be the slave or instrument of another.

In South African conditions, a non-racial, non-sexist, democratic constitution is the ultimate antithesis of apartheid, the embodiment of universal sovereignty and the epitome of the equal worth of each one of us. This is so independently of how we look, what language we speak, or where our ancestors came from.

A constitution is therefore not a deal worked out between new victors and new losers about how to share the spoils of office. It is the fulfilment of an historic dream of the oppressed for irreversible deliverance from injustice; it is the reaching out for firm principles that will protect us all from mutual abuse and fratricide in the future; it is the declaration of a set of shared core values that will bind us together because we believe in them and not because they are imposed; it is the means for enabling us to pursue our different interests without knocking each other down, and to resolve our competing claims in a fair and nondestructive manner.

In preparing for the drafting of the terms of our new constitution, we try to involve the widest sections of the population. As Namibia showed, the process of constitution-making can bring out the best in a people and encourage a sense of shared nationhood based upon an acceptance of common values.

A constitution is not a product to be sold to the people through skilful advertising. It is something that emerges from our innards, that expresses our highest idealism while protecting us from our basest temptations.

For those of us working for human rights in South Africa, the idea of constitutionalism is something new. Our legal tradition, taken from Britain, is one of parliamentary sovereignty. Accordingly, the essence of our struggle has been for the right to be represented on an equal basis in parliament. We fought for the vote, not for a Bill of Rights. Now we recognise the advantages of a Bill of Rights as a means of providing the framework of core values within which parliament operates.

We regard the Constitution as an agreed compact enabling people to live together in a context of secure equality. A Bill of Rights guaranteeing fundamental freedoms for individuals does away with the necessity for special group rights, which, in the circumstances of a country emerging from more than a century of explicit racial domination, would inevitably mean protection of group privileges. We need to ensure that democracy and the Bill of Rights work, and not to seek bizarre constitutional mechanisms to make the whites more equal than anyone else.

If we draw on global principles of human rights we do so not to prove that we can read the documents, or that we are civilised, but because they really speak to and for all of us.

Each freedom struggle is unique, yet the basic human experience of suffering and resistance is the same. Just as there is terrible internationalism in torture and means of mass humiliation and destruction, so we can universalise the organised forces of hope and human goodness.