In celebration of the 25th anniversary of the South African Constitution, Creative Feel asked Justice Dikgang Moseneke, one of South Africa’s most eminent judges and former Deputy Chief Justice of South Africa, to share how our country was able to establish one of the most progressive constitutions in the world.
Justice Dikgang Moseneke has always been deeply hateful of inequality. There are few South Africans who experienced the brutality of the apartheid regime as early in life and for as long as Moseneke. He was only 15 when he was convicted in 1963 of anti-apartheid crimes and sentenced to ten years’ imprisonment on Robben Island.
Like many other political prisoners, he mentally escaped his confinement by immersing himself in his studies. With teachers for parents, hard work and studying were a part of daily life before his prison sentence. ‘It came very naturally, coming from a home where I woke up every morning to go and study. My first request in prison was to study. I was one of the first, if not the first, who was given permission to study, and many other people thereafter did, which was wonderful. We turned Robben Island into a university and virtually all of us studied and got certificated,’ says Moseneke.
Moseneke completed his grade ten and grade twelve before completing a BA in English and Political Philosophy. These were obvious choices, he says. ‘I’ve always loved writing and reading and with political philosophy, I wanted to understand the political economy and political structures and arrangements in society.’ He then completed a B.Iuris degree and began working on an LLB.
‘So before I knew it, before I lifted my head, ten years were gone, and I had two certificates and two degrees. I graduated with my LLB a year after I came out, I’d run out of runway, otherwise I would have completed the LLB on Robben Island.’
Justice Dikgang Moseneke
In 1976, Moseneke started his professional career as an attorney’s clerk in Pretoria. In 1978, he was admitted and practised for five years as an attorney and partner at the law firm Maluleke, Seriti and Moseneke.
In 1983 he was called to the Bar and practised as an advocate in Johannesburg and Pretoria. Ten years later, in 1993, he was elevated to the status of senior counsel.
In 1993, Moseneke was part of the technical team that drafted the Interim Constitution and worked closely on the final Constitution. In 1994, he was appointed deputy chairperson of the Independent Electoral Commission that conducted the first democratic elections in South Africa.
‘At the beginning of something very historic, I decided I didn’t want to be a politician and it was the wisest decision. I thank God I made that decision. With all the hateful things I see around me now, and the inapt way in which politicians act,’ says Moseneke. ‘I chose to become a lawyer, to become a judge ultimately, that was a choice I made. And because I had made that plain and open, they all knew I wasn’t going to contest elections and I wasn’t going to take sides. That is why I was one of those who were asked to write the Constitution. The parties agreed to set up a technical committee, I was there with Arthur Chaskalson, who became our chief justice ultimately, and a few other people appointed by the Nationalist Party and the ANC. When Mr Mandela asked me, “will you be one of those who writes our Interim Constitution?” I said, “Yes, sir, I will be”,’ says Moseneke.
Following the CODESA (Convention for a Democratic South Africa) and Multi-Party Negotiating Process (MPNP) negotiations, where the name of the country, a new flag, the electoral system and the outline of a new constitution were agreed upon, the committee set about writing the Interim Constitution. ‘We reduced most of their rough and open-ended agreement to legal text, and what a privilege,’ says Moseneke.
‘Where do you move from being a slave and a prisoner and then now you are writing the Constitution of your country? Remember, my aim was to destroy apartheid, and here I’ve got an opportunity to write something that will help reduce it to ashes, so what a privilege.’
Justice Dikgang Moseneke
‘On Robben Island, one of the loveliest things that we did was debate on what a just society ought to look like. What are the features of a just society? It had to be the opposite of apartheid. It had to better than it, it must stand on stilts, on pillars of notions of fundamental human rights which had crystallised around the world, already ahead of us over the years, democracy, and values that would ensure all those wonderful things – openness, accountability – and governance that is directed at the benefit of the people, all of those things that we all know. So, those are the things we debated on Robben Island, so when we came to write the Constitution it was easy. We had quite clear notions. I mean, the Nationalist Party tried to say, “shouldn’t we have the vote qualified? Let the Constitution give the vote to those who have passed matric or who have R1 000 in the bank.” And the answer was sharp and short “No.” Human beings are human beings are human beings. Poor, young and old, beautiful, not so beautiful, hungry, not so hungry. The notion of universal franchise is so fundamental to my own notions of one race, one people. So, it was not difficult at all.’
‘There is always this debate: “is the South African institution Western inspired?” And my answer is an instant “no, are you out of your mind?” It grows from the values of a long struggle. Apartheid was inequality, it was oppression of women, it was homophobic, it was anti any other religion except Christianity, it was hateful about race, and it was horrible. Race is the most prominent to everybody, but it was much more than just race. It was about economic exclusion, and dispossession, landlessness, poverty, that’s what it created. So we went out to write it, and most of those values had crystallised internationally, they were now international norms of fundamental rights and freedoms, so we didn’t have to create new ones.’
‘We are lucky. Once we had written the Constitution, part of the magic of our transition was that the apartheid government had to pass a constitution that would dislodge them and it’s something that I never omitted, and I like to remind people. Once we had written the Constitution, it could never have become law unless the apartheid government adopted it and in so doing dissolved itself. As it died, the new democracy rose. The Electoral Act was passed, which made the 1994 elections possible.’
The last chapter of the Constitution covered Truth and Reconciliation, says Moseneke. ‘There’s an interesting story behind it because, at the end of the negotiations, the generals insisted that they will not support the new Constitution if they are not given amnesty. Generals do that around the world, every time. Look at Venezuela, anywhere where there has been a military regime, they always want amnesty because they have done such horrific things. And our stance was: amnesty, maybe, fine, but the truth, even better. Let’s not grant open-ended unconditional amnesty. People get amnesty on the back of the truth. Hence it became Truth and Reconciliation. And you saw how it didn’t cover everything – it couldn’t have covered everything – but symbolically, it was just confessional.
‘For instance, in my case, the security cops came and said, “we are asking for amnesty, we tried to kill you thrice, and we just missed you.” So I said, “Oh please, thank you for missing me! Bye bye! Take your amnesty and go.” In other cases more severe, people were killed, they disappeared, they were murdered and maimed. For me, they wanted amnesty for attempted murders. I was Winnie Mandela’s advocate when she was charged for Stompie – I’m just saying it upfront. George Bizos and I defended Winnie Mandela, we were the advocates at the time. As we did our work, the police hated it, they normally killed lawyers, they killed journalists, they killed activists, leaders. So the truth was important.’
A brand new court was also established, the Constitutional Court, and with it, new judges. ‘We couldn’t trust the old judges to interpret a brand-new constitution,’ says Moseneke. ‘Its values were inimical to the political and economic arrangements of apartheid, so we are not going to trust them to give meaning to a document which they might, basically, degut.
‘We were quite surprised at how quickly the Constitutional Court got into the fabric of the democratic project. Remember, there had basically been 360 years of conflict and occupation and fighting back, and now suddenly we were trying to reverse very complex power patterns in society, and the Constitutional Court got down to that job, bit by bit, lifting every rotten leaf.’
Justice Dikgang Moseneke
The Constitutional Court tackled issues from a whole range of fields, says Moseneke. ‘For instance, gender inequality. Equal worth for gay people – we were outranked and we knew that the majority of South Africans may not even be with us. People always think about the political things we did, but actually, we did many other wonderful things. We struck down laws around sodomy, for instance, and around same-sex marriage as unconstitutional. We struck down all sorts of arrangements at schools that kept people apart. While the Mbeki government was dilly daddling about it, we ordered the government to give Nevirapine to mothers who were living with AIDS and about to give birth in order to stop mother-to-child transmission. If we didn’t do that, just imagine how big the numbers would have become ultimately. We ordered the government to provide housing – not that they have done it consistently and all the time. It’s important to tell people that the Court will be true to its mission.’
Today, Moseneke is as busy as always. He has received a multitude of awards, several honorary professorships and doctors of laws, and published in law journals worldwide. He is currently writing the sequel to his memoir My Own Liberator, he gives talks and lectures around the world, and is the very successful chairperson of the Johannesburg Philharmonic Orchestra board. And when there is a little bit of time left over, he tends to his beautiful rose gardens at the back and front of his house.
