OPINION: Despite her foibles and faults, Lindiwe Sisulu should be extolled for raising issues that politicians only raise during election times. Sisulu’s stringent criticism about our Constitution has engendered an impassioned debate, writes Dr Vusi Shongwe.
“Comrades, you might think it is very difficult to wage a liberation struggle. Wait until you are in power. I might be dead by then. At that (stage) you will realise that it is actually more difficult to keep the power than to wage a liberation war.
“People will be expecting a lot of services from you. You will have to satisfy the various demands of the masses of our people. In the process, be prepared to learn from other people’s revolutions.
“Learn from the enemy also. The enemy is not necessarily doing everything (wrong). You may take his right tactics and use them to your advantage. At the same time, avoid repeating the enemy’s mistakes.” – Oliver Tambo
The utterances by Oliver Tambo as quoted above were at the time of their articulation as prophetic as they are today. They are, indeed, not only timeless but are also topical in many respects. Their topicality derives from the fact that there is in them an appeal for the forging of a collective consciousness that construes impoverishment of the downtrodden, as an unfortunate eventuality in a democratic society.
Although Tambo does not spell out in succinct terms that the “waging of a liberation struggle” is always replete with a sense of unqualified optimism. Such optimism and its sustenance towards the delivery of long-awaited realisable goals as envisioned during the years of struggle for liberation gets tested by the hurdles of implementation of what had been envisioned and promised to the downtrodden, as a designated class of people awaiting not only political liberation but also economic liberation.
As noted by Tambo, “people will be expecting a lot of services” from the comrades who by then would not only have attained political liberation, but would also be the ones in power.
The following quotation accounts for why governments fail to deliver what they had promised during the years of the Struggle. Thus, it is averred that:
“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place… If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
So, what can be gleaned from the above quotation is that the Constitution with its noble provisions is not under the care of “angels who were born to govern”.
Hence, issues of implementation of policies become major hurdles towards the realisation of “what ought to be”, having rid the past epoch of “what was”. Thus, when noble goals get diverted for want, I would dare say, of a political will, those who have a daring conscience such as Lindiwe Sisulu would dare to speak out and by so doing cause an uproar.
It is thus a rebuttal presumption, therefore, that such an act of commentary on the Constitution as instantiated by the recent conduct of Minister Lindiwe Sisulu, attests to the fact that “when the social system does not build security but induces peril, inexorably the individual is impelled to pull away from a soulless society”.
The majority of the elite in government enjoy an uncontested advantage of numbers, which derives from their sharing commonalities with the downtrodden on the grounds of racial affiliation segmented into distinct but interrelated ethnic groupings.
This ethnic-racial affiliation of the governing elite with the downtrodden confers as a logical consequence of this ethnic-racial affiliation legitimacy of the relationship between the two groups. Hence, Lindiwe Sisulu’s incisive comments on the plight of the downtrodden cannot be construed as anything but divisive and instigative. Hence, she had to apologise for the incisive comments she had made in the public domain.
In his article “Our Oath of Office”, Jonathan L Rudd, observes that “all too often in our culture, we participate in ceremonies and follow instructions without taking the time to contemplate and understand the meaning and significance of our actions”.
Rudd’s observation is with regard to the taking of an oath and the Constitution that those who are sworn-in solemnly swear to uphold. What is argued by Rudd is largely attributed to personal ignorance. Abraham Lincoln put it aptly when he said, “There is nothing more terrible than ignorance in action.”
Elder Vaughn Featherstone in his address “Living Up to Our Constitution,” says “we see around us people who are ignorant of sacred things, patriotic whisperings and the solace and peace that comes from prayer. Someone has said that a person lacking a sense of smell may not be able to smell the fragrance of a rose, but the fault is not in the rose, it is in the person”.
Rudd’s observation reminds one of something unprecedented that took place when the Cabinet of President Cyril Ramaphosa was sworn in. Justice Mogoeng Mogoeng, probably because of the cavalier manner in which some ministers and deputy ministers previously took the oath, gave a brief but very enlightening lecture to the ministers and deputy ministers about the significance of oath-taking. One cannot help but recall that some of those who were being sworn-in could not conscientiously take the oath.
They struggled to pronounce the word “conscientiously” correctly.
Senator J William Fulbright wrote in “The Arrogance of Power”, “to criticise one’s country is to do it a service and pay it a compliment. It is a service because it may spur the country to do better than it is doing; it is a compliment because it evidences a belief that the country can do better than it is doing…”
In this regard, Sisulu has been equal to the challenge. In her book “Within Our Reach,” Lisbeth Schorr wrote that she was astonished to find out how much we know, but dismayed at how little we use what we know.
The real tragedy of our time is that we have the know-how to solve many of our problems, but we lack the will. We are anxious but immobilised. We know what our problems are but seem incapable of summoning our will and resources to act.
For, as a great American sage and prophet, Henry, wrote many years ago: “Social reform is not to be secured by noise and shouting; by complaints and denunciation; by the formation of parties; or by the awakening of thought and the progress of ideas. Until there be correct thought, there can no right action; and when there is correct thought, right action will follow.”
Despite her foibles and faults, Lindiwe Sisulu should be extolled for raising issues that politicians only raise during election times.
Sisulu’s stringent criticism about our Constitution has engendered an impassioned debate.
The question is: how is our Constitution faring in realising the noblest ideals enshrined in it? Above all, will the Constitution last? Perhaps it depends on one’s perspective and whether we are “pouring” or drinking”.
One is, given 7.2 million people who are unemployed, and the rampant corruption to cite but a few examples, tempted to think that we are still pouring. Perhaps, as pointed out by the famous historian, Arnold Toynbee, our fate will depend upon the ability of our leaders to meet the manifold challenges faced by the embittered majority of the downtrodden.
Lee Atwater once implored: “Tell me what’s going on in the world” He said, “The problem with our political leadership is that we have too many ‘promises’ and not enough ‘explainers’.”
Our political leaders are not explaining to the South African people what it is that turns their lives upside down. Thus, there is a need to explain to South Africans what it is that is going on.
They can accept difficulty if they see not only the reason for it, but also where it is leading. What they cannot accept is senseless difficulty. (Reinventing the Condition of a civilised life by Van Dusen Wishard, William).
The Czech leader Vaclav Havel wrote these prescient words: “They say a nation has the politicians it deserves. In some sense that it true. Politicians are truly a mirror of the society and a kind of embodiment of its potential. At the same time, paradoxically, the opposite is also true.
“Society is a mirror of its politicians. It is largely up to the politicians which social forces they choose to liberate and which they choose to suppress, whether they choose to rely on the good in each citizen or on the bad.”
Also, Irvern Bell once said, “Most of us can read the handwriting on the wall; we just assume it is addressed to somebody else.” Things are falling apart. The centre cannot hold. Thus, George Orwell remarked that “the further a society drifts from the truth, the more it will hate those who speak it”.
What is the goal of laying siege to the truth? John F Kennedy, in his stirring speech on the 20th anniversary of the Voice of America, was eloquent in answer to that question by asserting that “… A nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.”
According to Dr Martin Luther King Jr, “when an individual is no longer a true participant, when he no longer feels a sense of responsibility to his society, the content of democracy is emptied and when culture is degraded and vulgarity enthroned, when the social system does not build security but induces peril, inexorably the individual is impelled to pull away from a soulless society. This process produces alienation which is perhaps the most pervasive and insidious development in contemporary society.”
Thus, an inquiry can be made on why so many people today exhibit timidity precisely when courage is required. Justice Thomas said: “These ‘rules of orthodoxy’ still apply. You had better not engage in serious debate or discussion, unless you are willing to endure attacks that range from mere hostile bluster to libel.”
He called the resulting phenomenon a crisis of civic courage. It is against this backdrop, therefore, that Sisulu should be commended for her courage and bravery to speak out as she did. According to Mark Twain bravery “is resistance to fear, mastery of fear, not absence of fear”.
If you’ve ever talked to a special agent that you know well and you ask him or her about a dangerous encounter they were involved in, they’ll almost always give you the same answer: “Yeah, I did it, but I was scared to heck the whole time.”
Pericles said, “Surely the bravest are those who have the clearest vision of what is before them, both danger and glory alike and this notwithstanding, move forward to meet it.”
That is the essence of bravery, and this is exactly what Sisulu has done by penning her controversial piece. Civil War General William Tecumseh Sherman said this: “I would define true courage to be a perfect sensibility of the measure of danger and a mental willingness to endure it.”
Arguably, it is time we ask ourselves hard questions. I Mitroff, James R Emshoff and Ralph H Kilmann in their article titled: “Assumptional Analysis: A Methodology for Strategic Problem Solving,” poignantly point out that our culture unconsciously trains us for compromise or even the avoidance of conflict, instead of equipping us to deal with controversy and conflict. As a result, we run the risk of reaching compromise too soon and for the wrong reasons, because of our inability to tolerate conflict and controversy.
Equally scathing is sociologist Zygmunt Bauman, who in his book titled: “In Search of Politics”, cites the philosopher Cornelius Castoriadis as observing that “the problem with our civilisation is that it has stopped questioning itself. No society which forgets the art of asking questions or allows this art to fall into disuse can count on finding answers to the problems that beset it – certainly not before it is too late and the answers, however, correct, have become irrelevant”.
Thus, commenting on the raging debate that has been sparked by Sisulu’s scathing attack on the judiciary and her violation of the Constitution is like navigating the troubled waters between Scylla and Charybdis. To chart this difficult course, one has consulted the priceless chart – the lessons of history. For example, for the founders of the American constitution, which many countries’ constitutions are drawn from, the constitution is not only the blueprint for government. It was and is a system of ordered liberty. As Thomas Paine wrote in “The Right of Man”, “the American constitutions were to liberty, what grammar is to language: they define its parts of speech, and practically construct them into syntax”.
In his address titled “Ordered Liberty: The Original Intent of the Constitution,” Charles McC Mathias is instructive when he says, “The authors of the constitution saw both the value and necessity of robust debate. This view was grounded in respect for individual differences and the reality that there was no way to squelch those differences without destroying the precious liberty they sought to preserve.”
Notably, one of the characteristics of a constitutional democracy is that judges, politicians and the community are forced to engage with some difficult and thorny questions. That is a healthy tradition, even when (or especially when) the topics are divisive. In that spirit of fostering “free and enlightened” discussion, though it might seem unquestionably superfluous to add to the many opinion pieces about Minister Lindiiwe’s diatribe against the judiciary and the Constitution, this piece is intended to contextualise the views that Sisulu advances.
I am in agreement with the views expressed by Sisulu except for two caveats. Lest I be compartmentally factionalised, let me hasten to say that I do not support or belong to any faction, but subscribe to an intellectually riveting and robust political discourse which is in any case of the great hallmarks of the once mighty African National Congress.
The deluge of vituperative criticisms directed at Sisulu, reminds one of Aesop’s fable of “The Man, the Boy, and the Donkey”.
According to the story, an old man and son were once going with their donkey to market. As they were walking, a countryman passed them and said, “You fools, what is a donkey for but to ride upon? So, the man put the boy on the donkey, and they went on their way.
But soon they passed a group of men, one of whom said, “See that lazy youngster, he lets his father walk while he rides.” So, the man ordered his boy to get off, and got on himself. But they hadn't gone far when they passed two women, one of whom said to the other, “Shame on that lazy lout to let his poor little son trudge along.”
Well, the man didn’t know what to do, but at last he took his boy up before him on the donkey. By this time, they had come to the town, and the passers-by began to jeer and point at them. The man stopped and asked what they were scoffing at. The men said, “Aren’t you ashamed of yourself for overloading that poor donkey of yours – you and your hulking son?
“The man and boy got off and tried to think what to do. They thought and they thought, until at last they cut down a pole, tied the donkey’s feet to it, and raised the pole and the donkey to their shoulders. They went along amid the laughter of all who met them until they came to a bridge, when the donkey, getting one of his feet loose, kicked out and caused the boy to drop his end of the pole. In the struggle the donkey fell over the bridge, and his forefeet being tied together, he was drowned.”
The moral of the story is that one cannot please everyone. One cannot make everyone like him or her. No matter what one does, there will be critics. Building a consensus is one thing but waiting around for 100% approval before one takes action will get one nowhere. It should be remembered that statutes are not made to honour critics; they are reserved for real leaders who are not afraid to take action and suffer the criticisms.
In defence of Sisulu, I find Domenga Ortega’s poem “Bullfight critics in Rows,” pertinent:
Bullfight critics ranked in rows
Crowd the enormous Plaza full;
But he’s the only one who knows –
And he’s the man who fights the bull.
Sisulu’s critics would be well advised to learn from the glorious verity that “tis the torch the people follow who ere the bearer may be.”
Might those who vehemently disagree with Sisulu listen and try to learn from her. Might it better serve the cause of truth-seeking to engage her in civil discussion, even though she erred by deviating from the protocols of civil discussion by her unwarranted personal attacks on the men and women of the cloak. Two wrongs do not make a right.
Regrettably, Sisulu, by attacking the judiciary and her egregious violation of the same Constitution she took an oath to solemnly uphold, has unfortunately vitiated the rather valid arguments she has courageously raised.
Her vituperative remarks are not only a blot to her, but to the deservedly and outstandingly amazing Struggle legacy of the Sisulu family. Arguably, the downtrodden are proud of Sisulu for heeding the admonishment of Dr Martin Luther King Jr, who once said, “Our lives begin to end the day we become silent about things that matter,” because, to her credit and courage, the questions she has raised remain valid until they are adequately addressed.
One is not oblivious that some of Sisulu’s critics argue that these things have always mattered, why does Sisulu raise them. In her defence, one could argue that she was hoping that things might change, instead they took the wrong turn.
Our country is being pillaged by the “guns” that liberated it, as exemplified by the State Capture findings. At the risk of defending Sisulu for using the word “house negroes and calling the judges ”mentally colonised”, the German philosopher Goethe is insightful when he says, “When an idea is wanting, a word can always be found to take its place.”
Similarly, the English political theorist, John Locke summed up the tendency of using unpalatable words when he posits that “we should have a great many fewer disputes in the world, if words were taken for what they are, the signs of our ideas only, and not for things themselves”. Rudd states that, in reference to America, and also applicable to South Africa, it is significant that we take an oath to support and defend the Constitution and not an individual leader, ruler, office or entity.
This is true for the simple reason that the Constitution is based on lasting principles of sound government that provides balance, stability, and consistency through time. A government based on individuals – who are inconsistent, fallible, and often prone to error – too easily leads to tyranny on the one extreme or anarchy on the other. The American founding fathers, explains Rudd, sought to avoid these extremes by creating a balanced government based on constitutional principles.
The importance of oath-taking is best captured by Primus Richard in his article “Constitutional Expectations,” who cites the inauguration of former president Barack Obama, which was marred by one of the smallest constitutional crises in American history.
The president did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the president again departed from the constitution’s text.
But the second time, nobody minded or even noticed. In that unremarked feature of an otherwise trivial affair lies a deep truth about the role of text in American constitutionalism. As related by Primus, according to Article II of the American constitution, the president is supposed to swear that he will “faithfully execute the Office of President of the United States”.
When prompting the president, the Chief Justice mistakenly put the word “faithfully” at the end of the phrase, so the inauguree swore to “execute the Office of President of the United States faithfully”, instead. In all likelihood, the error had no legal significance. But as a matter of statesmanship, botching the constitution was unfortunate, and self-appointed watchdogs began to chatter.
In his article “The Judicial Bookshelf,” D Grier Stephenson, jr, considers the Constitution to be the embodiment of the political system itself. This, argues Stephenson, presumably was what Woodrow Wilson had in mind in his commentary on American politics in the mid-1880s. “The Constitution in operation,” he wrote, “is manifestly a very different thing from the Constitution of the books”.
The future twenty-eighth American president was disheartened to find that the degree and quality of executive leadership promised and promoted by Alexander Hamilton and attained by several chief executives prior to Ulysses Grant had been eclipsed and displaced by the dominance of congressional committees. The American “model [of] government is no longer conformable with its own original pattern,” Wilson contended.
Indeed, the shift of power had become so complete that it seemed anachronistic to think of the president any longer as an elected political official.
“Except in so far as his power of veto constitutes him a part of the legislature, the President might, not inconveniently, be a permanent officer; the first official of a carefully graded and impartially regulated civil service system, through whose sure series of merit-promotions the youngest clerk might rise even to the chief magistracy.”
In this Wilsonian conception, the Constitution is in a nearly constant state of metamorphosis, even though the formal language of the document changes but little from decade to decade. Several recent books about the Supreme Court illustrate this chameleon quality of the American constitutional system. According to John F. McManus in his address titled “When Will We Hold Them to Their Oath,” each member of Congress– newly elected or re-elected – must solemnly swear allegiance to the oath at the beginning of each two-year session of Congress. It is interesting to note that many do so in robotic fashion, placing as much value on the solemn words of the oath as would an actual robot. Others possess varying degrees of loyalty to and awareness about the Constitution.
But all are encouraged to look to their party’s leaders, not to the document itself, for guidelines about how they should vote on proposed legislation. This cavalier attitude by the members when taking oath shows their disdain and their perceived insignificance of the constitution. What about today? Do members of Congress honour the Constitution each has solemnly sworn to uphold? According to McManus, overwhelmingly the answer is, “No, they don’t.” The constitution is adhered to selectively, and disobeyed regularly.
However, one provision of the document earns unquestioned respect from all in Congress. Appearing in Article 1, Section 6, it states, “The Senates and Representatives shall receive a compensation for their services.” Interestingly, and as expected, no member of Congress ignores that. What does this tell us? It shows the flagrant disregard, perceived inefficacy and insignificance of the Constitution by members of Congress. If public representatives of the mother of all constitutions could behave in this manner, would it be wrong, therefore, for Sisulu to question some of the glorified ideals our constitution purports to espouse?
McManus further states that congresses don’t merely make small breaches in the bulwark of the Constitution, they gouge it. To demonstrate the disdain for the venerable document held by most members of Congress, McManus lists 11 key parts of the Constitution regularly ignored, or fraudulently given new meaning. Each portion being violated or ignored still exists in the document and is part of what all members of Congress swear to support. But a majority does not honour the oath and, instead, allows government to expand its power while still claiming adherence to the Constitution. Sadly, McManus laments, most Americans, victims of deficient schooling about the Constitution, do not protest.
Doesn’t McManus’ lamentation resonate with the South African situation? As the lyrics of a famous song aptly put it, ‘there are more questions than answers.” However, to be blunt, there is a resonation. One sometimes get the impression that some of our elected representatives do not seem to grasp the importance of oath taking let alone understanding what is enshrined in the constitution. This point is well articulated by Jonathan L. Rudd when he posits that “...in our culture, we participate in ceremonies and follow instructions without taking the time to contemplate and understand the meaning and significance of our actions.”
McManus is at pains to point out that what follows covers all deviations from the Constitution’s text and intent. Unfortunately, there are more. He argues that the importance of what follows can be summed up with the claim that is frequently made to the effect that: America became great, not because of what government did, but because of what government was prevented from doing by the Constitution. The presumption is that we can be bound by the Constitution, as a community and as individuals, and the Constitution, in the works of Stanford Levinson, “worth genuinely grappling with as potential object either of commitment or of rejection. McManus concludes his address by saying that each of the above instances of avoiding the clear intent of the Constitution has resulted in great harm to American people. But the good news is that the Constitution is still in place, and it needs only to be enforced to bring about the restoration of sound government. All that is necessary to bring about this restoration is to inform and involve fellow citizens to hold the feet of their lawmakers to the fire and insist that their oaths of office mean something once again. As always, McManus points out, this depends on “we, the people”.
In his article “Public Statements by Judges and the Bias Rule,” Matthew Groves states that judicial office confers unique constitutional authority and public prestige upon judges and this judicial appointment affects the place of such a judge in society in ways which are not necessarily positive.
One is the extent to which a judge should be active in wider society. While it is clear that judges do not enter ‘some form of monastic seclusion’ upon their appointment, it is also clear that judges are subject to restraints by reason of their office. Those restraints include constitutional restrictions and expected standards of behaviour and conventions. The Guide to Judicial Conduct (‘Australian Guide’) as quoted by Groves explains:
“Judges are entitled to exercise the rights and freedoms available to all citizens. It is in the public interest that judges participate in the life and affairs of the community, so that they remain in touch with the community. On the other hand, appointment to judicial office brings with it some limitations on private and public conduct. By accepting an appointment, a judge agrees to accept those limitations.”
Groves further states that this and similar statements in the Australian Guide make clear that judges are subject to competing considerations that may be difficult to balance. On the one hand, judges ought to remain active within wider society, so that they are better able to understand the community whose values and interests are central to our legal system. On the other hand, judges are not like most other citizens. They occupy a special position and exercise special powers. That position and its powers affect and inevitably limit what judges can and should do outside their judicial role.
One important consideration is the need for judges to maintain their impartiality and therefore avoid conduct that might threaten the public perception of their impartiality. Chief Justice Gleeson explained that the ‘respect and weight’ accorded to the views expressed by judges was given on an ‘understanding by the community that to be judicial is to be impartial.’
He said: “Judges, as citizens, have a right of free speech, and there may be circumstances in which they have a duty to speak out against what they regard as injustice. But to deploy judicial authority in support of a cause risks undermining the foundation upon which such authority rests.”
The unique position of judges means that any public remarks they make may carry unusual status and influence. Chief Justice French also acknowledged this status when he recently referred to the ‘social capital attaching to the judicial office’, which appeared to influence the regular legislative proposals to confer non-judicial functions upon judges.
So, If governments may be cautioned against attempts to harness the particular standing of judges for a purpose that is not strictly within the judicial role, so should judges themselves. Judges should be careful to ensure that they do not inadvertently draw upon their constitutional or official authority to support remarks they might make when speaking in a personal capacity.
The statement in the Australian Guide that there ‘is no objection to judges writing for legal publications and identifying themselves by their title suggests, rightly in my view, that judges should be more cautious when writing primarily for an audience outside the judiciary and legal profession. The Australian Guide acknowledges that, while judges can make a positive contribution to the public debate on some issues, any such contribution should not create confusion or misunderstanding about the position from which a judge speaks. It explains that it can be ‘desirable’ for judges to make an appropriate contribution to the wider debate about issues affecting the administration of justice because it might ‘contribute to the public’s understanding of the administration of justice and to public confidence in the judiciary’ and perhaps also ‘help to dispose of misunderstandings, and to correct false impressions’. At the same time, however, the Australian Guide cautions that judges should be careful ‘to avoid using the authority and status of the judicial office for purposes for which they were not conferred’.
Professor Campbell, as quoted by Groves, similarly explained that:
“When judges speak or write extra judicially, they are clearly not exercising judicial powers, though their status as judges may be considered by some to have endowed judges’ extra judicial pronouncements with particular authority. Many members of the lay public may not appreciate that opinions expressed by judges extra judicially are not authoritative in the way that opinions expressed in court judgments usually are.”
According to Groves, the possibility that the status of public statements by judges may be easily misunderstood by the public is amplified if judges adopt the trappings of judicial office when speaking. An opinion piece written by a judge for a newspaper may, for example, be accompanied by a photograph of the judge wearing robes and sitting in chambers. The use of the trappings of office by judges when they speak or write outside their official duties is directly relevant to the bias rule because the existence of an apprehension of bias is determined by the judgment of a fair-minded and informed observer. This fictional observer is clearly a member of the public, not the bench or the bar, or one of the parties. If that observer could easily be confused about the status of extra-judicial remarks and whether the judge is likely to apply such reasoning in the discharge of his or her judicial duties, a reasonable apprehension of bias may be more likely to be drawn.
As the next section explains, an apprehension of bias is not lightly drawn but it can certainly be founded upon what judges say and do both within and outside their official duties. There are many other reasons why judges arguably ought to exercise caution in their public statements. Some judges may be tempted to speak to the media or make other public statements, to address what many perceive as the unsatisfactory and often imbalanced portrayal of the law or the courts by the media. A judge who speaks only once on a single issue may change little, but a judge who speaks frequently may cause more harm than good, not just by what is said but by the adverse perception that may be caused by an apparently attention-seeking judge. Thomas has cautioned that ‘the publicity-conscious judge, although perhaps intending to popularise the judiciary, may actually lower its prestige’. He also suggests that ‘[u]nrestrained publicity-seeking may cause distrust of judicial work and may tend to bring the judiciary into disrepute’.
Thus, according to Groves, it cannot be easy for a judge to deduce what a fictional observer might make of statements he or she made outside of court and in a quite different context to the hearing in which objection was taken to the remarks. These difficulties do not mean that judges should never speak in public outside their official duties. There are many instances in which judges can, and arguably should, make public statements, such as in speeches about important issues affecting the judiciary and the legal system. The public can only be better informed about the legal system if judges speak about their work in moderate terms and at suitable occasions. But judges should be mindful of the spectre of the bias rule. The more likely it is that an issue may arise for decision before a judge, the more reluctant the judge should be to speak on that issue, but that cautious approach will not be sufficient. It is difficult to predict what parties or issues may present themselves to a court. In many instances, no amount of caution or experience can prepare a judge for the events they may face in court. Isolation is not the solution.
After all, judges live in the same world as the parties who appear before them. Judges are better placed to understand the people and issues that come before them if they participate in that same society. But the extent to which judges can participate in public life is limited by the need to preserve the impartiality of a judge. According to the Australian Guide that limit is one of the restraints that judges accept in consequence of their appointment. Groves is of the view that, any restraint which attaches to judicial officers is not one that arises directly from the judicial oath or the inherent qualities of judicial office. The true source of restraint is the bias rule, but that rule does not prevent judges from speaking in public.
Judges remain free to speak publicly outside their judicial role, even upon controversial issues and in controversial terms. Judicial office does not necessarily restrict a judge’s freedom of speech. The bias rule instead restricts the freedom of judges to preside in cases involving parties, witnesses or issues if judges have spoken about them in terms which suggest that they may not approach the parties, witnesses or issues before them with sufficient impartiality.
That restriction on the freedom to preside is arguably justified because it applies only to those judges who have chosen to speak or write extra-judicially and only to the extent that the issues upon which a judge has spoken are real and live ones for decision by the judge in a later case.
The constitution is the solid rock upon which our country is built. However, the constitution is not cast in stone. In short, there is no permanency about it. Consider the ancient Hebrew passage: “And this too shall pass.” In 484 B.C., Greek historian Herodotus, observed: “there is nothing permanent except change.” Benjamin Franklin quipped, “nothing in this world is certain, but death and taxes,” he was actually referring to the US constitution.
It is worth sharing the views held by one US president about his misgivings about the inefficacy of a constitution.
In his book “Woodrow Wilson and the Roots of Modern Liberalism,” Ronald Pestritto painstakingly documents Wilson’s debt to Georg Hegel. Wilson was strongly influenced by Hegel. Hegel’s historicism was, irritable to Wilson, who wrote “the philosophy of any time is, as Hegel says, ‘nothing but the spirit of time expressed in abstract thought.” In reviewing the book of Pestritto, Scott W. Johnson, says Hegel may have mixed well enough with Wilson’s love life. However, the marriage between Hegel’s dialectic and Wilson’s specialty, the US constitution, was a troubled one, and not for the dialectic. The Constitution represents the attempt of its authors to establish government that would secure unalienable rights even against the depredations of future generations.
But Hegelians believe that, until we reach the end of History, a point also rivetingly addressed by Francis Fukuyama in his famous treatise, “The End of History,” ‘enduring’ rights exist only to be negated by future generations. Thus, Wilson wrote, “Just revered as our great constitution is, it could be stripped off and thrown aside like a garment, and the nation would still stand forth in the living vestment of flesh and sinew, warm with the heart-blood of one people, ready to recreate constitutions and laws.” Wilson certainly did not revere the Founders – appeals to their views were nothing more than “Fourth of July sentiments” that “perspicacious men” should “derid[e].” Wilson himself derided what he referred to as the Newtonian” underpinning of the Constitution, stating that the Founders “constructed an orrery—to display the laws of nature. Since the Constitution could not officially be ‘stripped off and thrown aside,” Wilson endorsed the emerging, Darwinian-inspired theory of a “living Constitution.” For Wilson, argues, Johnson, this did not mean creatively applying original principles to situations the Framers had not imagined: it meant negating those principles whenever they stood in the way of the march of History, as manifested in the latest promising idea. If Woodrow Wilson was alive, he would have been proud of the line of reasoning of Lindiwe Sisulu with regards to imperfections of a constitution.
The US Chief Justice Warren Burger best sums up what a constitution is all about. According to Burger, “the constitution does not solve our problems.
It allows people the freedom and opportunity to solve their own problems; it provides for representatives of the people to help solve problems; it provides an executive to enforce laws and administer government; it provides a judicial branch to say what the law means. From there on it is up to the people.”
Ultimately, argues Burger, the fate of the constitution depends on civic leaders. Mark Twain once observed that “the public is the only critic whose opinion is worth anything at all”.
It is worth tossing in the aphorism offered by the sage Benjamin Franklin: “For the want of a nail, the shoe was lost, For the want of a shoe, the horse was lost, For the want of a rider, the battle was lost, For the want of a battle, the kingdom was lost, And all for the want of a horseshoe-nail.”
Equally, US President Woodrow Wilson seems to be in agreement with Sisulu when, angered by the dominance of the US congress during his reign, posited that “the constitution in operation is manifestly a very different thing from the constitution of the books.”
The US Judge Learned Hand was scathing when he cautioned in his 1944 “Spirit of Liberty” speech that we should not rest our hopes too much upon Constitution, laws and courts because “liberty lies in the hearts of men and women: when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”
Thus, argues Harvey Sloame in his address titled “Jefferson, Madison, and Franklin,” It is often said state constitutions, or most of them drafted in the late 19th century, have stifled the vitality of state government. Those which have not been revised contain unusually excessive operational detail, bad for many reasons, as David Fellman points out: “it makes temporary matters permanent. It deprives state legislatures and local government of desirable flexibility and diminishes their sense of responsibility. It encourages the search for methods of evading constitutional provisions and thus stands to deface our sense of constitutional morality…. It hinders action in time of special stress or emergency (land question in South Africa). It stands in the way of healthy progress. It blurs distinction between constitutional and statute law, to the detriment of both. It creates badly written instruments full of obsolete, repetitions, misleading provisions. Above all, it confuses the public.”
It is worth mentioning that Henry the VIII murdered three wives and married six. He violated every Commandment of God and man. But he did it all within the letter of the law. He did it by bulldozing or bribing judges, legislators and citizens. But he kept it within the letter of the book.
Indeed, as one writer commented, even revolutions may be made to seem technically constitutional. The constitution should not be the device to block the people’s progress, as exemplified by the land question, but it should be the device of the people to preserve themselves. To those who want to hide behind the constitution, let me paraphrase the words of Muster: “the constitution was made for man, and not man for the constitution.”
The great pamphleteer, Thomas Paine, wrote a pamphlet in England under the title “the Rights of Man” in which he asserted with great force the simple proposition that the freedom and welfare of the individual is the highest purpose of the State and that no ruler can claim any greater authority than is conferred upon him by the government of the state as representative of all the people.
To the annoyance of the royalty, Paine told the people of England that the claim of the Stuart Kings to divine prerogative was a denial of the rights of the people and, in his own words, “the King hath no prerogative but that which the Common Law allows him. The publication of this pamphlet led to Paine’s prosecution. He was defended by one of the greatest English lawyers, Lord Erskine. Lord Erskine had this say in his address to the jury:
“The proposition which I mean to main as the basis of the liberty of the press, and without which it is an empty sound, is this, That every man, not intending to mislead, but seeking to enlighten others with what his own reason and conscience, however erroneously, have dictated to him as truth, many address himself to the universal reason of a whole nation, either upon the subject of government in general, or upon that of our own particular country; then he may analyse the principles of constitution, point out its errors and defects, examine and publish its corruptions, warn his fellow-citizens against their ruinous consequences, and exert his whole faculties in pointing out the most advantageous changes in establishments which he considers to be radically defective, or sliding from their object by abuse. All this every subject of this country has a right to do, if he contemplates only what he thinks would be for its advantage, and but seeks to change the public mind by the conviction which flows from reasoning dictated by conscience.”
He said further: “I shall ever maintain it to be the dearest privilege of the people of Great Britain to watch over everything that affects their happiness, either in the system of their government or in the practice, and that for this purpose the press must be free. It has always been so, and much evil has been corrected by it. If Government finds itself annoyed by it, let it examine its own conduct, and it will find the cause; let it amend it, and it will find remedy…Engage the people by their affection, - convince their reason, - and they will be loyal from the only principle that can make loyalty sincere, vigorous or rational, - a conviction that it is their truest interest, and that their government is for their good.”
In his book, “Civil Society: The Underpinnings of American Democracy,” Brian O’Connell notes that “the history of …democracies teaches us that the greatest threat often comes from within…” and that “many of the threats to our civil society relate to misunderstanding of what it is and its relevance to the functions and preservation of democracy.”
Undoubtedly, O’Connell’s observation resonates well with both the arguments Sisulu has raised and the general plight of those still trapped or mired in abject poverty 27 years into our democracy. The argument of the nascence of our democracy has passed its selling date.
It bears remembering, therefore, what sagacious Oliver Tambo once said and what kicked off this piece.
Tambo was right, especially his advice to learn from other ‘people’s revolutions’ – hence the saying – ‘good judgement comes from experience and experience comes from bad judgement.
Our challenge is to rise above the din and the divisiveness of today’s politics. It is to tune out of the noise and tune into reason. It is to choose patience over impulse, and fact over feeling.
It is to reacquaint ourselves with wisdom by returning to core principles.
From his prison cell, before he was killed by the Nazi government, Dietrich Bonhoeffer, a theologian and leader of an underground seminary, wrote these words about the future of his country: "What we shall need is not geniuses ... or cynics ... or misanthropes ... or clever tacticians ... but plain, honest straightforward men (and women)."
Now, it's your turn ... and I'd love to hear from some of you. I hope I have demonstrated the candour and the courage to throw out some honest and provocative ideas ... and now I'll show the common sense to sit down. We have come so far as a country, and we still have far to go in improving the lives of so many people. We have so much to do in this time of peril and uncertainty. Much to repair, much to repair, much to restore, much to heal and much to build. We should put politics of factionalism aside and face the real problems. As the Bible says, “weep, ye may endure for a night, but joy cometh in the morning. We should go through this together. Paul the apostle said, “if the trumpet gives an uncertain sound who shall prepare himself for the battle.” I “Cor. 14:8 – we, the precious few, must give the clarion call and sound the trumpets blast to the rallying forces of good and noble men and women.”
Sisulu, notwithstanding her serious blunders, has given the clarion call. Hopefully, it is not a factional clarion call, but a call geared towards the renewal of the oldest liberation movements in Africa and the deliverance of those still trapped in abject poverty.
True, as in the Prayer of St Francis, for where there is discord, there is union, where there is darkness, there is light. This is what we should be as a country of the Mandelas, Tambos, Sisulus and Mbekis.
The historian Jon Meacham, in his book, ‘The Soul of America,” reassures that history shows us that “we are frequently vulnerable to fear, bitterness, and strife.”
The good is, he says, “is that we have come through such darkness before.” Indeed, just like America, we had our own darkness during the viciously oppressive Apartheid government.
If the paralysing hand of government can only be arrested and lifted from the backs and souls of the people, the infinite energies of our resilient country will prevail; and through the current dry season, the rain which Nelson Mandela brought to our parched country will rain again. I still believe in the wisdom of the Founders of the South African Constitution. One still believes the government will get all its powers from the people and never be their master. It will give every individual an opportunity to shape his or her destiny. A government that will continue to guarantee economic security and ensure that corruption is finally nipped in the bud. In the Proverbs we read, “he that tillleth his land shall be satisfied with bread: but he that followeth vain persons is void of understanding”
I like Henry Wardsworth Longfellow’s lines from his poem, “The Building of the Ship.” Though they were quoted to rejuvenate the American government to be indeed the government of the people and for the people, they also resonate well with the South African reality of palpable despondency and uncertainty brilliantly captured by the State Capture report.
“Sail on, sail on, Oh Ship of State,
Sail on, Oh Union strong Union strong and great;
We know what Master laid thy keel,
What workmen wrought thy ribs of steel?
What hammers rang,
What anvils beat,
In what a forge and what a heat
Were shaped the anchors of thy hope,
Sail on, nor fear to breast the sea,
Our hearts, our hopes are all with thee
Humanity, with all its fears,
With all its hopes for future years,
Is hanging breathless on thy fate.”
May the consciences of our leaders who are involved in unnecessary factionalism whilst the poor struggle to make ends meet be pricked by the patriotic words once said by Abraham Lincoln in a moving and inspiring address when he spoke fidelity to his native land: “If ever I feel the soul within me elevate and expand to those dimensions not wholly unworthy of its Almighty Architect, kit is when I contemplate the cause of my country***. Here, without contemplating consequences, before High Heaven and in the face of the world, I swear eternal fidelity to the just cause, as I deem it, of the land of my life, my liberty, and my love.”
* Shongwe works for the KZN Department of Arts and Culture. This piece is written in his personal capacity.
** The views expressed here are not necessarily those of IOL and Independent Media.