In this wide-ranging essay, Sir Nick Stadlen, former English High Court Judge and producer of the “Life Is Wonderful” documentary about the Rivonia Trial, explores the significance, history and meaning of Human Rights Day, particularly in relation to the South African Constitution.
The significance of Human Rights Day
by Sir Nick Stadlen
National days are often chosen for their symbolic significance. Normally they commemorate a stirring victory. South Africa is no exception. For years under white rule, “Dingaan’s Day” or the “Day of The Covenant” (“Geloftedag” in Afrikaans), as it was later renamed, was celebrated on December 16th to commemorate the triumph of the Voortrekkers over the Zulu army led by Dingaan at the Battle of Blood River in 1838. Now, in the new South Africa, it is celebrated as the Day of Reconciliation between black and white South Africans.
In the era of the Rainbow Nation, National Day on April 27th is celebrated to mark the first non-racial democratic elections conducted on a universal franchise: the ultimate triumph of the anti-apartheid movement.
Human Rights Day
On its face, Human Rights Day on 21st March is different. It commemorates one of the two darkest days in the history of apartheid: the Sharpeville massacre of 1960, and June 16th 1976, the day that started as a protest by schoolchildren in Soweto against being taught in Afrikaans, which they regarded as the language of the oppressor, and ended in an even bloodier massacre in which at least 176 and possibly several hundred children were killed by the police. June 16th is also celebrated today as Youth Day.
So why celebrate a defeat? And why Sharpeville in particular? This was not the only occasion in which police or soldiers opened fire on unarmed civilians. In the years and decades leading up to Sharpeville, there had been other massacres, mostly of black South Africans but also of white miners, in one of which the death toll had been even greater. In 1913 police and soldiers fired on white striking miners killing 100 workers and bystanders. In the months before and after Sharpeville there was a brutal suppression of an insurrection in Pondoland against the imposition of Bantu authorities. On several occasions the police opened fire to disperse angry mobs including at Nquza Hill in June 1960, when 11 Africans were killed and 13 injured. Eventually the revolt was put down by the Black Watch Brigade, which surrounded the region, cut off all roads and then went into smash all opposition. So why Sharpeville?
The answer to the second question is probably the graphic photographs and foreign TV news footage. The cold-blooded and unprovoked murder of 69 unarmed black men and women, including at least one pregnant woman, and the wounding of 178, most shot in the back while trying to run to safety, was captured in its full horror for the world to see. They had been attending or in some cases just observing a peaceful protest organised by the Pan African Congress (PAC) against the infamous pass laws. The plan was for protesters to leave their pass books at home and hand themselves in at the Sharpeville police station to be arrested. There were Saracen armoured personnel carriers with mounted machine guns and rows of armed police outside the police station.
The large crowd was ordered to disburse but before they had the chance to comply the police opened fire on them. Many of those closest to the police station were shot at point blank range, their attempts to flee rendered impossible by the crush of those at the back of the crowd. 168 policemen fired 1,344 rounds of ammunition into the crowd. Evidence given by survivors years later to researchers and at the Truth and Reconciliation Commission alleged that several people in the surrounding streets, some of them not even going to the protest, were shot without warning or provocation by armed police. After the crowd had fled, witnesses told of wounded people being finished off by policemen, policemen putting knives and stones in the hands of some of the dead to give the false impression that the indiscriminate shooting into the crowd had been a response to armed attacks on them by the crowd, and said that over 20 bodies which had been disfigured by the use of exploding dum dum bullets were removed by police to avoid post mortem examination.
The next day, the shocking photographic evidence was on the front page of newspapers in the UK, the USA and around the world and soon after the film footage appeared on television screens. It was the first event which drew the attention of the world to the humiliating and inhumane system of apartheid and to the cruelty and violence which was used to enforce it. I was ten years old and the images on television made a profound and lasting impression on me. They have become as well-known as those of the assassination of President Kennedy.
There were three other events which had the same effect. The first was Nelson Mandela’s “If needs be, I am prepared to die” speech, delivered from the dock at the Rivonia trial in 1964. The second was the June 1976 massacre of the protesting Soweto school children. The third was the inquest for Steve Biko in November 1977, at which Sir Sydney Kentridge QC proved to the satisfaction of the entire world, except for the government appointed magistrate, that Biko had been murdered while in the custody of the security police. All three events were reported in great detail by the international press. Although, as banned people, the press in South Africa was forbidden from reporting anything said by Mandela or Biko, there was an exception in the case of court proceedings. And the Soweto massacre was filmed by foreign news outlets and appeared nightly on TV screens around the world. As with the Sharpeville massacre, the coverage of these events by the international press and media forced the shocking reality of life under apartheid into the forefront of the attention of the world.
As to the first question, there are perhaps a number of answers.
First, Sharpeville arguably spelled the beginning of the end of apartheid. Yes, it took a further 34 years and at the time no one made that prediction. But the crucial first step was that the Sharpeville massacre brought the full extent of the violence and cruelty which was used to prop up apartheid to the attention of the world. It also prompted the apartheid regime to respond by doubling down, as the current expression has it, by introducing a raft of draconian emergency laws. In particular, laws were passed giving the Minister of Justice power to detain individuals first for 90 days, then 180 days and ultimately, under what came to be known as the Sobukwe clause (so called because it was aimed initially at Robert Sobukwe, the leader of the PAC), indefinitely. The minister did not have to give reasons and his orders could not be challenged in court. Detainees had no right to legal advice, medical attention or visits by family. Thousands of political activists of all colours and ethnicities were rounded up and detained. As Robin Day remarked in a report on the BBC Panorama programme, South Africa became a fully functioning police state.
In a press release announcing the anti-pass campaign, Sobukwe wrote: “We cannot remain foreigners in our own land. The African people do not need to be controlled. They can control themselves.” He emphasised the connection between anti-pass protests and human rights: “This noble campaign is aimed at obtaining for the African people those things that the whole civilised world accepts unquestioningly as the right of every individual.” He also predicted the response of the apartheid state. “If the other side so desires, we will provide them with the opportunity to demonstrate to the world how brutal they can be. We are ready to die for our cause.”
The African National Congress (ANC), together with the PAC, was banned and its leaders were driven either underground (Nelson Mandela, Walter Sisulu, Govan Mbeki) or into exile (Oliver Tambo). It proved to be the spark which ignited the worldwide anti-apartheid movement which contributed over time to the end of apartheid. It also led to the adoption by the United Nations in 1965 of the International Convention on the Elimination of All Forms of Racial Discrimination, the first global human rights treaty and a shift to framing the case against apartheid as a specific manifestation of a wider battle for human rights. In addition, it led to an historic change in the tactics of the ANC.
After 50 years in which peaceful protest had secured few meaningful rights for the majority “non-white” population, the ANC embraced a campaign of sabotage directed against infrastructure but not people. Initially there was resistance, but the change was advocated by Mandela himself and, as Andrew Mlangeni, later one of his co-defendants at the Rivonia trial, observed, Mandela was a very persuasive fellow and eventually the other leaders said: “Mandela you can go on with this idea of yours.” uMkhonto we Sizwe (MK), the Spear of the Nation, was formed and became in effect the armed wing of the ANC. After Mandela, Sisulu and Mbeki were sentenced to life in prison at the Rivonia trial in 1964, for the next three decades the ANC and MK, operating abroad, sustained and intensified the world-wide struggle against apartheid.
Second, the annual commemoration of the Sharpeville massacre serves as a reminder of the depths to which a society can fall when human rights are either not protected by law or are abused by governments and the police. Not only were 69 people murdered and many more wounded by the police but the murders went unpunished. In Cape Town, Albie Sachs, a human rights advocate (later one of the first Justices appointed by President Mandela to the Constitutional Court) was served with two detention orders. He says the psychological effects of prolonged solitary confinement are still with him. He sued the prison Governor for refusing to give him access to books or pen and paper.
In a shameful judgement the Court of Appeal rejected his claim, arguing that, since the purpose of the legislation was to enable the police to obtain information from detainees, it was to be inferred as a matter of statutory construction that Parliament had intended to make life as unpleasant as possible for detainees. The fact that a law which authorises human rights abuses is sanctioned by parliament does not mean that they are not human rights abuses. Nor is parliamentary sovereignty, even when the parliament is elected by a genuine majority of the population, which was not the case in South Africa under apartheid, itself a guarantee against human rights abuses. That is what Lord Hailsham had in mind in his famous warning against elective dictatorship in which there is no legal limit to the power of the government.
“…if the 20th century has taught us anything it is that most human rights abuses have been perpetrated, authorised or acquiesced in by the state and that it is from the state, through all its organs, that citizens have the greatest need of protection.”
This really matters. Horrific and surreal as the excesses, inhumanity and systemic injustice of the apartheid years are now universally recognised to have been, they serve as a terrible reminder of what human beings are capable of and the vital importance of a legal system whose function and effect is to protect all citizens from such behaviour. In particular if the 20th century has taught us anything it is that most human rights abuses have been perpetrated, authorised or acquiesced in by the state and that it is from the state, through all its organs, that citizens have the greatest need of protection.
Third, Human Rights Day provides the people of South Africa with an opportunity to commemorate and honour those who fought for and in many cases suffered, were detained without trial, tortured, imprisoned and/or died in the struggle to achieve a free, non-racial democracy based on universal suffrage and the protection of human rights.
Fourth, it reminds all South Africans of the human rights which they now enjoy and which they and the state must respect. The South African Constitution is rightly admired as one of the best, if not the best, written constitution in the world. It is the crowning glory of the political settlement that finally brought apartheid to an end and ushered in a new era of real democracy in which every person is regarded as equal under law. Even, and perhaps particularly, at a time when South Africa is beset by huge problems, it is an opportunity for South Africans to take pride in a constitution which is the envy of the world. Not only does it proclaim and enshrine in the Bill of Rights (section 2 of the Constitution) a large number of human rights, including some which are not even recognised as such in many other countries, it also provides a unique level of entrenchment and protection of those rights.
Thus, the Constitution obliges the state to respect, protect, promote and fulfil all the rights set out in the Bill of Rights, which expressly binds the legislature, the executive, the judiciary and all organs of state. Those rights may only be limited in terms of law of general application and to the extent reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
There are explicit and rigorous restrictions on the circumstances in which a state of emergency maybe declared: only by an Act of Parliament and only when the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency and a declaration is necessary to restore peace and order. It may be effective only prospectively and for no more than 21 days unless the National Assembly resolves to extend it, and that may be done for no more than three months at a time. The first extension must be supported by a majority of the members of the Assembly and any subsequent extension by resolution requires a supporting vote of at least 60% of the members of the Assembly, and only following a public debate in the Assembly. Any competent court may decide on the validity of a declaration of a state of emergency and no Act of Parliament authorising a declaration of a state of emergency or enacted in consequence of such declaration may authorise any derogation of certain key rights. The right to approach a competent court alleging infringement or threatened infringement of a right in the Bill of Rights is guaranteed, as is the power of the court to grant appropriate relief.
In addition, the Constitution provides further support for human rights by conferring on the South African Human Rights Commission, a creature of the Constitution, extensive powers and duties to promote respect for human rights and the culture of human rights, and the protection, development and attainment of human rights and to monitor and assess their observance. The Commission is declared to be independent and, subject only to the Constitution and the law, must exercise its powers impartially and perform its functions without fear, favour or prejudice. Other organs of state, through legislative and other measures, must assist and protect it to ensure its independence, impartiality, dignity and effectiveness. No person or organ of state may interfere with its functioning and it is accountable to the National Assembly to which it must report annually.
The Human Rights Commission has extensive powers including to investigate and report on the observance of human rights, to take steps to secure appropriate redress where they have been violated, to carry out research and to educate. It has the proactive duty each year to require relevant organs of state to provide it with the information on the measures they have taken towards the realisation other rights in the Bill of Rights concerning housing healthcare, food, water, social security, education and environment.
Cumulatively, these safeguards are arguably greater than their equivalent in the UK. South African courts must declare any law that is inconsistent with the Constitution to be invalid to the extent of its inconsistency. By contrast, under the UK Human Rights Act if a UK court holds that an Act of Parliament is inconsistent with the European Convention on Human Rights (ECHR) it may declare that it is inconsistent but it is still obliged to enforce it and has no power to declare it invalid. As a member of the Council of Europe (as distinct from the European Union), the UK is one of the original signatories to the ECHR and in 1998 its provisions were incorporated directly into domestic UK law by the passing of the Human Rights Act so that rights under the ECHR can be directly enforced by the UK courts without the need to bring a claim in the European Court of Human Rights in Strasbourg. It follows that the UK government has the power to withdraw from the ECHR and the UK Parliament has the power to revoke the Human Rights Act. These are not theoretical or academic possibilities. Each has been advocated in recent years by different senior leading figures in the Conservative Party.
Three years ago, I had the opportunity to observe at first hand the work of the Commission. I was invited by one of the Commissioners to observe a hearing which he convened to require the mayor and chief executive of a large community in one of the more remote provinces to explain and justify why they had not taken adequate steps to deal with extensive sinkholes which were polluting the local water supply. It was a remarkable exercise combining a semi-judicial function, supported by subpoena powers, with a hands-on collaborative approach in which the mayor and the chief executive were encouraged to identify ways in which the Commission might assist them in complying with their obligations, for example by making representations to the government to provide the necessary funding.
In 2014 the South African government website stated that Human Rights Day “provides the country with an opportunity to reflect on progress made in the promotion and protection of human rights. We all have a responsibility to ensure that our human rights record and history are preserved and strengthened for future generations.”
That is of course a two-edged sword. Enshrined and protected by the Constitution as they are, ultimately human rights depend in part on the support which they are given by various key actors: the government, both national and local, the judiciary, the criminal justice system, the prosecuting authority and the media. Each has a vital role to play in applying the Constitution and/or investigating and exposing human rights abuses. In turn the commitment of state actors to enforcing and complying with human rights is influenced by the degree of pressure from public opinion to do so. It is therefore important for ordinary citizens to do what they can to make known to those in positions of power their commitment to the rule of law. Human rights are dependent on the rule of law because without it there is no one to enforce them and to give redress to victims when they have been abused.
Two years ago, I chaired a discussion between Lord Neuberger, the recently retired President of the UK Supreme Court and Albie Sachs, a retired Justice of the South African Constitutional Court. The topic was a comparison of the strengths and weaknesses of the South African written and the British unwritten constitutions in dealing with politically sensitive cases. In preparing for the event, I researched recent instances of disregard for the rule of law in various democracies around the world. Poland, Hungary, Turkey, the USA, South Africa and yes, the UK. The catalogue does not make for happy reading. Wholesale replacing of senior judiciary by the government in Poland, wholesale jailing of judges and civil servants in Turkey stand out. The infamous “Enemies of the People” headline in a leading British tabloid above photos of three senior judges who had ruled that the British Government would need the consent of parliament to give the EU notice of Brexit.
The muted public response of the Government to the headline moved a retired Lord Chief Justice to comment that it was a little too late and a lot too little. Since then, the British Government purported to prorogue parliament, thereby potentially preventing it from voting against a No Deal Brexit, an act subsequently held by a unanimous decision of 11 Justices of the UK Supreme Court to be unlawful and of no effect. In the United States the loser of the recent presidential election was recorded seeking to persuade a senior election official to find enough votes to overturn the victory of his opponent in Georgia, refused to take part in the orderly transition of power which lies at the very heart of the democratic system and persuaded millions of his supporters that an election which was held by judges across the country to be free and fair had in fact been rigged against him by his opponents.
“The price of freedom is eternal vigilance and complacency is the enemy of vigilance.”
If there is a common thread it is perhaps the rise of populism and a perception that conventions and attitudes on which the rule of law and the effective protection of human rights in part depends, and which for years have been taken for granted, are no longer considered by significant parts of the population to be important. These are developments from which not even the most mature democracies are immune. The price of freedom is eternal vigilance and complacency is the enemy of vigilance. As it turned out, both in the challenge to the decision to trigger Brexit without the sanction of parliament and in the case of the purported proroguing of parliament, the unwritten British Constitution delivered the goods. The judiciary showed itself to be both impartial and fearless and the decisions of the Supreme Court were ultimately adhered to by the Government, albeit grudgingly.
And what of South Africa, a relatively recent addition to the list of genuine democracies? Even a written constitution depends for the effective enforcement of human rights on an impartial and fearless judiciary and the public commitment of the executive to upholding the rule of law and the human rights of its citizens. Nelson Mandela, who was sentenced to life in prison under a law enacted by a parliament in whose elections he had no right to vote, was nonetheless a passionate believer in the rule of law. When he was President, he once volunteered to submit to cross-examination in a case in which a decision of his was being challenged in the Constitutional Court. For years the impartiality and independence of the senior judiciary has been one of the great strengths of the new South Africa. The same is true of civil society and a fiercely independent and outspoken press.
But the new South Africa has had its share of assaults on the rule of law and human rights. In 2012 police opened fire on striking miners in Marikana killing 34 people. In KZN there has been an epidemic of political assassinations. Under the previous administration it is alleged that corruption and bribery existed on such a scale and at such high levels of government that it gave rise to the name of State Capture. Allegations of corruption continue and during the pandemic there is evidence of attempts to defraud the public purse by the submission of false invoices for PPE and there have been allegations of police brutality and unlawful killings in the enforcement of lockdown. Leading members of a political party have made speeches calculated to incite racial hatred. There is widespread disillusionment with the slow pace of economic transformation, of ending racial discrimination and of delivering some of the social rights guaranteed under the Constitution.
Not the least worrying item on the list is the saga of long-standing allegations of impropriety made by senior judges against a senior member of the judiciary which remain unresolved after many years and which have recently been added to by a public allegation by a retired Constitutional Court Judge that the judge in question is dishonest and that he should be suspended pending investigation both of the earlier allegations and of his recent decision to dismiss a charge of corruption against a former government minister. Also pending is a decision of the Constitutional Court on an application by the Zondo Commission of Enquiry into corruption for an order committing former President Zuma to prison for contempt of the Commission by failing to appear before it when required to do so.
Set against this dispiriting list must be put steps that have been and are being taken to investigate and where appropriate prosecute alleged offenders. The State appointed a retired Appeal Court judge to conduct an enquiry into the Marikana shootings at which victims and their families were represented by distinguished counsel, including George Bizos, who were instructed by the Legal Resources Centre and had the right to cross examine police and other witnesses. The Zondo Commission itself is a wide-ranging investigation, armed with subpoena powers, led by the Deputy Chief Justice, into the so-called State Capture allegations. It remains to be seen whether and if so, how many of the allegations will result in prosecutions and convictions. There has been no shortage of coverage by the press of all these matters or of calls on relevant organs of the state to discharge their duties under the Constitution to investigate and where, justified by the evidence, to prosecute.
“The contrast between the dark days of apartheid and the democratic rainbow nation remains immense.”
There is much to celebrate on Human Rights Day. The contrast between the dark days of apartheid and the democratic rainbow nation remains immense. The sacrifices and achievements of the brave men and women who fought for democracy and human rights for all not only remain deserving of admiration and gratitude. They have a vital role to play in serving as role models for the values which are no less essential today than they were then, if the hopes and aspirations which inspired them are to be realised.
Much is written, quite rightly, about failings in post-apartheid South Africa: the slow pace of economic transformation, the persistence and resurgence of racist attitudes and racial discrimination in some quarters, corruption and bribery in the public sphere, even complaints of judicial bias. But it is instructive to contrast the human rights enshrined in the Bill of Rights and protected under the Constitution with the paucity of human rights for “non-white” South Africans and the lack of redress for both white and non-white activists in the apartheid era.
The origins of the South African Constitution lie in the Freedom Charter which was drafted by Rusty Bernstein, a communist architect and Rivonia trial defendant, following a nationwide consultation organised by the Congress Alliance of organisations opposed to apartheid. He sat with hundreds of scraps of paper containing suggestions from all over the country on his carpet and gleaned from them a core of fundamental human rights. The Freedom Charter was adopted at the Kliptown conference in 1955 and became the mission statement of the ANC. When I filmed Andrew Mlangeni on his first and Denis Goldberg on his second return to the holding cells beneath Court Room C of the Pretoria Supreme Court, where they were on trial for their lives with Mandela and others at the Rivonia trial in 1963/4, Denis spotted graffiti comprising the Freedom Charter on the wall of the cell. They confirmed that it had been there while they were on trial for their lives. 32 years later the rights proclaimed in the Freedom Charter were in large part incorporated into the Bill of Rights which forms the second section of the new South African Constitution.
The primary function of the Constitution was (i) to extend to the majority population political and other rights previously enjoyed only by the white population but also (ii) to ensure that those rights would apply with equal force to citizens who found themselves possibly for the first time in the position of supporting political parties that did not enjoy a majority in parliament and (iii) also to declare a new set of political rights to reflect the change from apartheid and a police state to a democracy based on universal suffrage which is committed to human rights and in particular to the political rights of all its citizens.
This last function involved the creation and protection of a raft of detailed rights for all citizens to partake equally and freely in elections, both as a voter and as a candidate for office, to join a political party and to be free from arbitrary arrest, detention or imprisonment without trial, torture, confiscation of property or discrimination. Many of these rights went far beyond conferring on the majority population human rights already enjoyed by the white population. Thus, for example discrimination whether by the state or individuals was outlawed on the grounds not just of race or colour, but also of a series of other criteria, discrimination by reference to some of which is not prohibited in many other countries.
Among the human rights enshrined in the Bill of Rights are the following:
the right to equal protection and benefit of the law including the full and equal enjoyment of all rights and freedoms;
the right not to be directly or indirectly discriminated against either by the state or by any person on grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth;
the right to have one’s dignity respected and protected;
the right to freedom and security of the person including the right not to be deprived of freedom arbitrarily or without just cause,
the right not to be detained without trial, to be free from all forms of violence from either public or private sources, not to be tortured and not to be treated or punished in a cruel, inhuman or degrading way,
the right not to be subjected to slavery, servitude or forced labour,
the right to privacy including the right not to have one’s person, home or property searched or one’s possessions seized, or the privacy of one’s communications infringed,
the right to freedom of conscience, religion, thought, belief and opinion,
the right to freedom of expression, including freedom of the press and other media, freedom to receive or impart information or ideas, freedom of artistic creativity academic freedom, and freedom of scientific research,
the right peacefully and unarmed to assemble, to demonstrate, to picket and to present petitions,
the right to freedom of association,
the political rights to form a political party, to participate in the activities or recruit members for a political party and to campaign for a political party or cause, the right to free, fair and regular elections for any legislative body, and the right of every adult citizen to vote in elections for any legislative body and to do so in secret and to stand for public office and, if elected, to hold office,
the right of every citizen not to be deprived of citizenship,
the right to freedom of movement, to leave the Republic, to enter, to remain in and to reside anywhere in the Republic, and the right to a passport,
the right to choose one’s trade, occupation or profession freely,
the right to fair labour practices, the right of every worker to form and join a trade union and to participate in its activities and to strike,
the right of every employer to form and join and employer’s organisation and to participate in its activities,
the right of every trade union, employer’s organisation and employer to engage in collective-bargaining,
the right not to be deprived of property except in terms of a law of general application and no law may permit arbitrary deprivation of property,
the right to administrative action that is lawful reasonable and procedurally fair,
the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, an independent and impartial tribunal or forum,
the right when arrested to remain silent, to be informed promptly of the right to remain silent,
the right not to be compelled to make any confession or admission that can be used in evidence against that person, the right to be brought before a court as soon as reasonably practicable but not later than 48 hours after the arrest, at the first court appearance after being arrested to be charged or informed of the reason for the detention to continue or to be released, and to be released from prison if the interests of justice permit subject to reasonable conditions,
the right of everyone who is detained, including every sentenced prisoner to be informed promptly of the reason for being detained, to choose and consult with a legal practitioner and to be informed of that right promptly, to have a legal practitioner assigned to the detained person by the state at the state’s expense if substantial injustice would otherwise result and to be informed of that right promptly, to challenge the lawfulness of the detention in person before a court and if the detention is unlawful to be released, to conditions of detention that are consistent with human dignity including at least exercise and the provision at the state’s expense of adequate accommodation, nutrition, reading material and medical treatment, to communicate with and be visited by one’s spouse or partner, next of kin chosen religious counsellor and chosen medical practitioner,
the right of every accused person to a fair trial, including the right to be informed of the charge with sufficient detail to answer it, adequate time and facilities to prepare a defence, to a public trial before an ordinary court, to have the trial begin and conclude without unreasonable delay, to be present when being tried, to choose and be represented by legal practitioner and to be informed of this right promptly, to have a legal practitioner assigned to the accused person by the state and at state expense if substantial injustice would otherwise result and to be informed of that right promptly,
the right to be presumed innocent, to remain silent and not to testify during proceedings,
the right to adduce and challenge evidence and not to be compelled to give self-incriminating evidence,
the right to be tried in a language that the accused person understands, or, if that is not practicable, to have the proceedings interpreted in that language,
the right to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentencing,
the right of appeal to or review by a higher court.
The Constitution also declared and protected a series of social rights which went far beyond the political rights referred to above. They include;
the right to an environment that is not harmful to one’s health or well-being and that is protected for the benefit of present and future generations through reasonable legislative and other measures,
a right to have access to adequate housing and to require the state to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of that right,
the right of access to healthcare services, sufficient food and water and social security,
the right of every child to basic nutrition, shelter, basic healthcare services and social services, to be protected from exploitative labour practices and not to be required or permitted to perform work or provide services inappropriate for a person of that child’s age or that place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development,
the right of everyone to basic education, including adult basic education and further education which the state through reasonable measures must make progressively available and accessible, and the right to receive education in the official language or languages of their choice if reasonably practicable.
There are many countries in the world today where such matters are considered to be the sole preserve of the legislature, involving as they do the expenditure of public money and thus not suitable to be given the status of a right enshrined in a constitution which the government is bound to provide.
The Department of Justice has published an excellent small edition of the Constitution which can fit easily into a pocket and which sets out its provisions with admirable clarity. It is an inspiring read and I strongly recommend it. A coalition comprising the Commission of Human Rights, the Department of Justice, the Rights For All Foundation and the Ministry of Basic Education is working on a project to make available to every grade in every High School in South Africa a user-friendly copy of the Constitution and to promote discussions about it in the classroom, so that the next generation will understand their rights and obligations under the Constitution and learn about the events which gave rise to them.
It is salutary to compare this wide-ranging list of human rights enshrined in the Constitution with the position at the time of the Sharpeville massacre in 1960 and the years leading up to the Rivonia trial and its aftermath. For the vast majority of the population almost none of these rights existed either in law or in practice.
The people who were murdered at Sharpeville had gathered outside the police station in response to a protest against the pass laws organised by the PAC, which had recently broken away from the ANC because it opposed the ANC’s policy of cooperating with white, Indian and Coloured opponents of apartheid. Black South Africans had no legal right to reside or be present, whether for work or recreation, in the cities. They were confined to the reserves or Bantustans which occupied no more than 13% of the country, mostly in remote and impoverished rural areas. The pass laws were designed to control the supply of black labour needed by the white economy, mostly as domestic servants in white households, in the mines or in factories. They were a central weapon in the state armoury to control the movement of black people. It was a criminal offence not to have your pass on your person or to be in a place at a time not permitted by the pass, in both cases punishable by instant imprisonment and even beating.
One of the Rivonia defendants, Elias Motsoaledi, in short biographical notes which all the defendants wrote at the suggestion of Jimmy Kantor, Accused Number 11, and which can be seen at the Liliesleaf Museum in Rivonia, gave a harrowing account of arriving in search of work in Johannesburg from a rural area where there were few police to enforce the pass laws. He described the process of humiliation at the pass office and the difficulty of staying with his brother while looking for a job. He had to go to his room late at night and leave again very early in the morning so that he was not seen by his employers. Eventually, he obtained a pass book which he described as a slavery document entitling him to look for work. One day he forgot it, was stopped by a policeman and bundled with others into a pickup van and taken to a police station where they were all locked in cells. It was, he said, the start of hell for him.
“There was no chance of explaining anything as even explaining how your name was spelled invited more trouble. You are even assaulted for not replying when your name is called out just because the European is unable to pronounce your surname correctly and you don’t understand him. Just one day in that type of jail was enough to ruin your life. After sentence we were taken to the Fort and as I entered the passage a warder punched me with his fist for no apparent reason. I could go on elaborating about our treatment, but I only choose to say that it got worse as the days went by.
“I am a Mopedi, hence my home language is Sepedi and the only languages I could speak at that time were English and Sepedi. But I soon realised that the jail languages were Zulu and Afrikaans and I could not express myself in either. The African surnames got translated in the different dialects and I found it difficult to remember that Nokosi was the Zulu translation of my name, which meant I was assaulted each time I did not reply. On one occasion when I forgot the name, a Zulu warder called me away from the others and started hitting me on the head with a heavy stick. He did it continuously until he was so tired that he had to stop and wipe off his perspiration. I thought it was over, only to find the man attacking me again, until the stick broke. My head was bleeding and I thought my brain was injured. Later I said to myself that all this was because of a piece of paper which said “pass”.
Joel Joffe, the defence attorney at the Rivonia trial, told me that of all the defendants, each one of whom he admired as a person of real integrity and dignity, he found Elias Motsoaledi to be the gentlest soul and the one who moved him most.
At least two of Motsoaledi’s co-defendants, Andrew Mlangeni and Denis Goldberg, were tortured while detained without trial, torture was commonly used by the Security police to obtain information or confessions and from the death of Looksmart Ngudle in 1963 until the end of apartheid there were over 40 deaths in police custody.
As to discrimination, black people had no right to vote, to work or live where they pleased, to live with their families, to strike, to marry or have sexual relations with people of another race. The limited rights of the Cape Coloured community to take part in elections were removed in 1952 following a gerrymandered packing by the National Party government of its supporters into the Senate to secure the necessary two thirds vote. Indians were also denied rights enjoyed by whites and were not allowed to stay overnight in the Orange Free State. The apartheid regime foreshadowed the phenomenon of ethnic cleansing by imposing wholesale forced removals of long-established mixed-race communities in District 6 in Cape Town to a new township miles away on the Cape Flats, and of long established black and Indian communities from Sophiatown to a new township outside Johannesburg.
An insight into the deep-rooted nature of the racist attitudes prevalent among many whites in the post-war period leading up to apartheid can be gleaned from the remarkable fact that General Jan Smuts, the former prime minister of the Union of South Africa, was one of the chief authors of the United Nations Charter, which inspired the UN Universal Declaration of Human Rights that was adopted in 1948, the same year the National party came to power on the platform of separate development. Although he did not support the National Party, Smuts saw no inconsistency in excluding the majority population of his country from the protection afforded by the recognition of universal human rights. Africans, he said, are “children of nature …. A race so unique, and so different in its mentality and its cultures from those of Europe, requires a policy very unlike that which would suit Europeans.”
The contrast between the systematic exploitation and discrimination of the apartheid state and the oppression and violence used to enforce it on the one hand and the range of political and socio-economic human rights enjoyed by South Africans today is enormous and represents a staggering achievement on the part of those who brought an end to apartheid and those wise heads who drafted and agreed the 1996 Constitution.
But of course, even a first-rate Constitution is not enough. It is not a guarantee in itself that human rights will be protected and their breach punished. That depends on the robustness of an independent and unbiased judiciary, on the freedom and courage of an independent press, on an effective opposition that holds government to account and on public officials committed to the highest standards of integrity. It also requires the deployment by government of the financial resources needed to make a reality of the socio-economic rights conferred by the Constitution. Despite significant successes in the scale of state service provision since 1994, access to essential goods and services is not uniformly available and it remains significantly distorted by reference to race and economic status. The combined effects of widespread corruption and the financial cost of responding to the Covid pandemic have significantly reduced the availability of funds to improve that situation. In addition, in recent years there has been no shortage of instances of human rights abuses and breaches of the rule of law. On the other side of the ledger, credit is due to the many people in government, local and national, in the judiciary, in NGOs, in charities, in the press and ordinary citizens who are deeply and actively committed to making a success of the legacy of the heroes of the struggle against apartheid and of the Constitution which is still alive and well.
These are all matters which it is appropriate on Human Rights Day to contemplate. It is right on this of all days rigorously to assess whether the blue-ribbon Constitution is working as its founders intended and providing effective protection for human rights and effective redress for their breach. And if not, in what ways it can be made to work better.