On this Freedom Day, the Centre for Constitutional Rights (the CFCR) celebrates the birth of our constitutional democracy founded upon the democratic values of human dignity, equality and freedom. We celebrate the Constitution of the Republic of South Africa, 1996 (the Constitution) which, as supreme law, guarantees these fundamental values and rights. We also celebrate freedom itself, without which, democracy easily turns into a demagoguery and despotic government.
On 27 April 1994, the interim Constitution came into force. It freed South Africa from a legally and morally indefensible political dispensation and allowed for the first non-racial and truly democratic elections in South Africa on that same day. It replaced parliamentary sovereignty with a doctrine of constitutional supremacy and gave courts the power to declare conduct and laws inconsistent with the Constitution, invalid. Moreover, the interim Constitution enshrined a Bill of Rights which safeguarded universally accepted fundamental rights and freedoms for everyone in the country, therefore prohibiting the state from violating or limiting those rights and freedoms arbitrarily. In short, it brought about a democracy in which government must be based on the will of the people under the Constitution, in which executive powers are limited and subject to parliamentary oversight and judicial review, and in which freedom is the norm and not an exception to the rule.
Today, the Constitution, adopted by our freely elected representatives as the supreme law of South Africa, guarantees a democratic state founded upon the values of:
- Human dignity, the achievement of equality and the advancement of human rights and freedoms;
- Non-racialism and non-sexism;
- Supremacy of the Constitution and the Rule of Law; and
- Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.
These foundational values are central to our Constitution and together with the principles of democracy and freedom, part and parcel of our constitutional scheme. In this regard, democracy, or a democratic government, is generally understood as a government who formulates the will of the people and who responds to the will of the people in a manner that is accountable, responsive and open. It is consent of the governed. In turn, fundamental rights, freedoms and civil liberties, as a whole, convey a composite idea, firmly established in human rights jurisprudence, that freedom is an inalienable entitlement of all human beings. In this context, freedom, according to Ignazio Silone, is the “possibility of doubting, of making a mistake… of searching and experimenting… of saying no to any authority – literary, artistic, philosophical, religious, social, and even political”.
Democracy and freedom, as envisaged by the Constitution, are interrelated. One cannot sustain without the other. Said differently, the right to vote in itself, as important as this right is, means little without fundamental rights and freedoms. As such, the Constitution not only provides for a multi-party democracy, but also for fundamental rights and freedoms which the state must respect, protect, promote and fulfil.
We have been enjoying regular and free elections resulting, in principle, in a representative democracy. Nonetheless, we have also been seeing an ever-increasing encroachment on fundamental rights and freedoms – whether by means of attempts to limit media freedom and access to information, threats to property rights, politicisation of the criminal justice system, police brutality or the inability to realise various socio-economic rights. In addition, Parliament’s failure to ensure effective oversight of executive conduct and powers, but also the governing party’s increasingly majoritarian posture in the National Assembly, have been posing a real threat to the fundamental rights and freedoms of everyone in South Africa.
According to John Gray, “having a voice in collective decisions – the basis of democracy – is a fine thing, but it won’t protect your freedom if the majority is hostile to the way you choose to live”. John Stuart Mill, a prominent proponent for greater democracy, also expressed the fear that once a government claim to act on the will of the majority, personal liberty almost always shrinks.
Our democracy is clearly not only about the right to vote or the will of the majority. It is balanced by the realisation of fundamental rights and freedoms regardless of who you are or for whom you have voted. Ours is, according to the Constitutional Court, “a constitutional democracy that is designed to ensure that the voiceless are heard, and that even those of us who would, given a choice, have preferred not to entertain the views of the marginalised or the powerless minorities, listen”.
Freedom is, of course, not limitless. It must be enjoyed within the parameters of the Constitution and with due regard for the rights and freedom of others. Nonetheless, the default remains freedom – freedom that we must guard with every means provided for by the Constitution since freedom gives meaning to our democracy and fundamental rights. Thomas Paine probably said it best: “He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself”.
Issued by Adv Johan Kruger, Director: Centre for Constitutional Rights