05/11/2004
George Bizos

About 30 years ago, Prime Minister John Vorster declared that human rights were getting out of hand.  His sentiments are echoed by the rulers of our closest neighbours Swaziland and Zimbabwe.  Africa and more particularly Southern Africa has made some progress.  We in South Africa have achieved much in the last decade.

Our Constitution incorporating the Bill of Rights was adopted by an overwhelming majority of the democratically elected Constitutive Assembly unanimously certified by our Constitutional Court as being in compliance with the 34 Democratic Principles agreed to by the 22 parties at CODESA.  It has been hailed by freedom loving people throughout the world as a model to be followed.  Whilst the vast majority of the people of South Africa are celebrating the 10th anniversary of our Constitutional Democracy, remnants of Vorster’s followers blame the Constitution and the apex Court’s interpretation of it for some of our problems.

They assert that the death penalty, detention without trial, limitation of the right to bail, and the imposition of other cruel and inhuman punishments should be brought back.  They claim to be speaking on behalf of the majority of the people in South Africa and cry out for referenda to amend the Constitution.  The election results prove them wrong.  The party advocating the reintroduction of the death penalty in the recent election found support amongst less than 1500 voters.  They do not accept that there are certain fundamental human rights that cannot be abrogated by whatever majority.  Of course most of them would oppose a referendum as to whether their property could be taken away without compensation.

From time to time individual opponents of the apartheid regime make similar calls, apparently forgetting where we come from.

There are however two further disturbing tendencies adhered to by small numbers of South Africans.  They are both out of tune with the prevailing view of the vast majority of South Africans.  The one says this is Africa.  What do you expect?  Although we cannot ignore this vestige of apartheid’s slogan as the organised legal profession and individuals, we should identity with and render assistance to our brave colleagues, the NGO’s and the victims in their efforts to ameliorate their suffering in a number of African Countries

The other group contends that human rights are a eurocentric notion, which should be rejected in favour of African traditional values and practices.  We are even told that we must abandon our common law despite the constitutional provision to develop it to promote the spirit of the Bill of Rights.  Let them read the judgements of Langa DCJ and Justice Ngcobo in Bhe vs Magistrate, Khayelitsha and others in relation to the customary law and Carmichele’s case in relation to delict before they speak again.

All of us involved in the administration of justice should make it our business to support all the structures responsible for the resolution of conflicts, particularly the courts.  They cannot function effectively when the majority of the people have no access to justice.  Our claim that we are supporters of the rule of law and human rights culture will be questioned if we do not take practical steps to make it possible for people to approach the courts particularly to enforce their socio-economic rights set out in the Bill of Rights.

I am mindful of the positive steps being taken by the General Bar Council and its constituent bars to transform ourselves.  It is not an easy task.  I once again want to praise those involved in attempts to transform the profession and promote the unity of the bar.

Our profession has not been indifferent to the problems in the neighbouring countries.  Some of us appear in their courts.  Some of our leading members and distinguished retired judges have acted as judges.  Our countries, are heirs to the same common law, there are many parallels in our history. We are members of regional political, economic and cultural bodies.

As the Sir Sidney and Lady Kentridge Award is for Human Rights in Southern Africa and the focus in recent years has been particularly on Swaziland and Zimbabwe, whose people have been deprived of most human rights, we should look at events in those countries in the African context:

In February 2001 fifty-three Heads of State in Africa subscribed to the Constitutive Act of the African Union in Kartum.  The preamble records that they are:

DETERMINED to take up the multifaceted challenges that confront our continent and peoples in the light of the social, economic and political changes taking place in the world;

DETERMINED to promote and protect human and peoples’ rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law; and

FURTHER DETERMINED to take all necessary measures to strengthen our common institutions and provide them with the necessary powers and resources to enable them [discharge their respective mandates effectively]

In article three we read:

(g) promote democratic principles and institutions, popular participation
and good governance;
(h) promote and protect human and peoples rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant rights instruments;

(l) promotion of gender equality;

(m) respect for democratic principle, human rights, the rule of law and good governance;
(n) respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities;

Evidently, human rights culture has moved up on Africa’s agenda.  The establishment of the African Court on Human and People’s Rights and the ratification of the protocol by many of the member states has been welcomed.  Judges are being nominated for appointment. Our Judge President Ngoepe has been nominated to the Court.  Although it is even more likely to suffer the difficulties experienced by other International Courts and is likely to be under funded, it is nevertheless a vast improvement on the African Commission, which hardly made any contribution to the promotion of human rights.  Access to the Court is not given to individuals nor to established human rights groups within the country. Remedies must be exhausted before National Courts.  Halidou Ouédraogo of the Union Interafricaine Des d’ Droits de Ll’Homme has said

“Every country must make a public declaration that NGO’s, civil society and ordinary people can take the country to court in cases of serious human rights violation”

Article 26 of the African Charter on Human and Peoples Rights provides:

State parties to the present charter shall have the duty to guarantee the independence of the courts and shall allow the establishment and improvement of appropriate national institutions and trust it with the promotion and protection of the rights and freedoms guaranteed by the present Charter.

And yet, reports of the United Nations and its agencies, the International Bar Association, the European Union, Amnesty International, Human Rights Watch, religious leaders, non-governmental organisations, journalists and commentators have produced cogent evidence that a few of the signatories must have crossed their fingers when they subscribed to the noble ideals in the preamble and the Bill of Rights.

Swaziland has effectively been without a constitution since the 16th April 1973 when King Sobhuza nullified the constitution, which was brought into force on 6th September 1968 because

It permitted the importation into our country of highly undesirable political practices alien and incompatible with the way of life in our society.

The country has been ruled by an oligarchy of the king’s uncles and princes who enjoy prerogatives and privileges and are not accountable to anyone.  Political parties are banned, trade unionists are being harassed, court orders were ignored as a result of which the judges of the Court of Appeal resigned more than two years ago. No one worthy of the name volunteered to take their place. The King recently appointed a new Prime Minister assured the erstwhile judges that their orders would be complied with, that the rule of law would be restored and there will not be interference with any member of the judiciary.  The judges have agreed to go back. Let us hope that the lesson that no society can function without respect for the rule of law and an independent judiciary may be learned by all others in our region.

Swaziland has failed to investigate and prosecute those responsible for torture and abusive police behaviour.  It denies the rights of freedom of association and peaceful assembly to those who oppose its policies.  It undermines the roll of the courts to protect the rights of women and girls against forced marriages.  It fails to protect women and girls against rape and other forms of sexual violence.  It evicts without due process its political opponents.  Access to justice is denied by those in power.  There is no press freedom.

The King and his entourage attempted to justify their denial of fundamental human rights on the ground that the very instruments to which they have subscribed do not accord with the traditional values and culture of the Swazi nation which they want to remain a kingdom.  They profess that the majority of the people in Swaziland believe that monarchy and democracy are incompatible without giving an opportunity to those who hold a contrary view to express it and freely campaign for its adoption.  They are not allowed to:

• point out that monarchies have flourished and enjoyed greater loyalty when the King or Queen agreed to reign and under their guidance allowed democratically elected representatives to govern in their name;

• draw attention that those Kings and Queens that resisted change where deposed;

• to draw comparisons to countries in which constitutional monarchs in the United Kingdom, the Netherlands, Belgium and Spain are good examples to be followed;

• say that it is not only in Europe that constitutional monarchies are to be found, they are equally successful in Japan, Nepal and Thailand;

• remind its citizens that the monarchy in France, Russia, Italy, Greece and other European countries come to a sorry end because they failed to convert themselves to constitutional monarchies;

• to hear that the same happened in a number of countries in the Middle East, Egypt and Ethiopia.

Significantly of the 53 Heads of State presently at the adoption of the Constitutive Act of the African Union in February 2001 were represented by the Presidents as a Heads of State.

Would those who may support the present system be of the same view if they were allowed to hear of the advantage that the wrath of the people when mistakes are made is directed against the Prime Minster and the Government instead of the Sovereign? That the monarch is the head of state to both those in government and opposition who remain loyal to the throne.

Above all they ignore the reaffirmation in the African Charter of Human and People’s Rights:

…to promote international co-operation having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights.

Yes, it also provides that consideration should be taken of

The virtues of the historical tradition and the values of African civilization which should inspire and characterise their reflection on the concept of human and peoples rights.

There are apparently ignorant of the view of Acting Chief Justice Pius Langa and Justice Yvonne Mokgoro that the African values encompassed within the word Ubuntu are substantially similar to those declared in South Africa’s Bill of Rights not materially different to the Universal Declaration of Human Rights, the Canadian Charter, the Declarations and Protocols of the European Union and those enunciated by philosophers in ancient and more recent times.

One hopes that the recent attempts to draft a democratic Constitution for Swaziland may find some guidance in our Constitution.

In March 2004 Swaziland acceded to four core international human rights treaties.  Apparently steps are being taken to improve one of the poorest records in sub-Saharan Africa.

The agreement New Partnership for Africa’s Development (NEPAD) and Declaration on Democracy, Political, Economic and Corporate Governance entered into in Durban on the 18th June 2002 and signed by the member states of the African Union who agreed to co-operate in pursuing “Democracy and Good Political Government”, “The Rule of Law”, “The Equality of all Citizens before the Law and the Liberty of the individual”, “adherence to the separation of powers, including the protection of the independence of the judiciary and of effective parliaments” and to ensure “the independence of the judicial system that will be able to prevent the abuse of power and corruption”.

The benefits of recognised legitimacy of the government, the encouragement of investment for development and humanitarian assistance, may well have influenced the Swaziland Government to promise and initiate some of the recent reforms.

The initiative of the South African government and the persistent calls by President Mbeki for the implementation of NEPAD hopefully may influence Zimbabwe to change its parlous course.

Although President Mugabe and his Ministers deny that the rule of law has been abrogated in Zimbabwe, their statements indicate that they do not distinguish between the rule of law and rule by law.  They assert that there is judicial independence, that there is an independent prosecution service, and an independent police force that fairly investigates complaints.  They blame the government of the United Kingdom, the European Union, the opposition MDC political party, the newspapers that they have closed down, the journalist that they have arrested or deported and many more organisations and individuals except themselves.  There are certain facts that cannot be denied.

No wonder that its judicial system is under stress, its economy is at a very low ebb and most of its people are clasping their hands in despair.

The least we South African lawyers can do is to salute our brave colleagues in our region, some of them endure even worst treatment than the judges and magistrates.  Let us be of such assistance as we can to them and their people and hope that with all the difficulties their judicial systems will survive and that democracy and the rule of law will be established.