“Is this the country I was fighting for?” asked Albie Sachs, Former Justice of the Constitutional Court of South Africa. “There are many problems - unemployment, poverty, the worst GINI coefficient in the world. But, yes, it is. We got a country when we didn’t have one. There is no president for life, the Constitutional Court is strong enough to send a former president to jail for contempt, we have a free and open press, people speak their minds, the constitutional text is as progressive as you can get – with gender sensitivity and equality for language, culture and religion, and it’s the only constitution with a long section dealing with values. This is the country I fought for. But it is not the society we were fighting for. We must use the rights guaranteed in the constitution to get the society we need. This is a difficult time. We need to make the true value of the constitution meaningful for South Africa.”
Sachs was presenting the keynote address at the 10th Stellenbosch Annual Seminar on Constitutionalism in Africa (SASCA 2023) held at STIAS from 19 to 22 September 2023. He gave a deeply personal account of the events, procedures and thinking that led to the writing and acceptance of the Bill of Rights and Constitution in South Africa in the late 1980s and 1990s.
“For my generation the public and political was personal,” he said. “It was us, our country. There was intense idealism, emotion and thoughtfulness. It was literally a matter of life and death.”
He pointed out that the Bill of Rights was not a nice add-on but central to the conception of a new, democratic South Africa and that only a constitution drafted by a properly elected government would have been acceptable. “The goal was a non-racial South Africa, with democracy and protection given to all human beings.”
Addressing the theme of SASCA 2023 - Ethnicity and Constitutionalism in Africa. He pointed out that: “If basic fundamental rights and freedoms are equal, then ethnicity can flourish. All languages, cultures and forms of self-expression can blossom. Bullets don’t distinguish ethnicity. You build unity by working together.”
SASCA 2023 was hosted by STIAS and jointly organised by the Institute for International and Comparative Law in Africa (ICLA) of the Faculty of Law, University of Pretoria; the University of the Western Cape Research Chair in Constitutional Design for Divided Societies; the South African Research Chair in Multilevel Government, Law and Development (SARChI) at the Dullah Omar Institute, University of the Western Cape; and, the Konrad Adenauer Stiftung (KAS) Rule of law Programme Sub-Saharan Africa (Anglophone Countries) based in Nairobi. Participants came from all over Africa as well as from the US and Europe.
The theme for the 10th SASCA – Ethnicity and Constitutionalism recognised that the emergence of ethnicity as a potent forc in politics in Africa is as old as the postcolonial state. African leaders were confronted with the complex problem of maintaining the territorial integrity of the newly independent but deeply divided states they inherited from the departing colonial powers. Many thought recognising ethnic diversity would give rise to divisive politics, instability and disintegration.
However, attempts to make ethnicity a non-issue through constitutions that ignore or suppress diversity have not produced the desired results of political stability and economic development and, in the past three decades, the reality of disgruntled ethnic groups and political violence, spilling over into intractable armed conflicts, has forced some countries to adopt new constitutions. These constitutions have introduced different mechanisms to accommodate ethnic diversity and dampen communal tensions. There are also countries that are either unwilling or do not appreciate the relevance and propriety of using constitutions to recognise distinct identities.
The seminar aimed to breathe life into an aspect of ethnic diversity management largely neglected in the literature: constitutional design. It brought together leading experts on constitutional design and ethnicity to examine the relevance and use of constitutions to deal with the challenges of ethnic diversity in African states. Through detailed comparative and country case studies, it interrogated the extent to which the tensions in ethnically divided societies can be managed, reduced or exacerbated by a country’s constitution.
The sub-themes included: Ethnicity, colonialism and nation-building in Africa: The historical context and its evolution; Ethnicity, constitutionalism and constitutional design; Case studies; Constitutional accommodation of ethnicity and its impact on ‘the others’; and, the African Union’s and Regional Economic Communities’ role in dealing with challenges of ethnic diversity.
All the papers presented will be peer reviewed for publication in the eighth volume of the Stellenbosch Handbooks in African Constitutional Law series, published by Oxford University Press.
No time for complacency
Speaking of the original aims of SASCA, Charles Fombad , the Director of ICLA, indicated that the objectives were to promote deepening constitutionalism in Africa; put African constitutional law on the global stage; and, to establish a network of legal academics, judges and practicing lawyers and a repository of knowledge and memory on the implications of constitutionalism in Africa.
“Since the 1990s there have been far-reaching constitutional developments in Africa but the only country on the continent doing comprehensive research on this issue was South Africa,” said Fombad. “We wanted to stimulate interest in comprehensive constitutional law studies in the African context; to identify issues and best practices in African constitutionalism; as well as identifying trends, patterns and gaps on the continent. All to create a solid foundation for comprehensive research in Africa.”
“SASCA has brought together heavyweights from all over Africa, the USA and Germany as well as many African students. There have been many milestones but, most significantly, we have developed a partnership for intra-African dialogue.”
He also pointed to the challenges including building a critical mass of black African constitutionalists and achieving gender balance. “There remains a lot to be done,” he said. “The threats faced by constitutions, democracy and rule of law have increased especially in the last few years. A global survey published in The Guardian newspaper on 11 September indicated that 42% of those aged 18 to 35 years support military rule and doubt the merits of democracy.”
“This is clearly no time for complacency. We have to take the project to the next level,” he added.
Expanding the impact of the project was also discussed by fellow convenor Stefanie Rothenberger, the Director of KAS, who pointed to the importance of making the SASCA series of books open-access (this year alone the open-access volumes amassed 12 000 views) and how the group is looking at further ways to communicate the work including social media and expanding the countries and languages involved. These ideas and others as well as an examination of the key issues concerning constitutionalism in Africa formed the basis of detailed panel discussions.
History and imagination
At the 10th anniversary dinner, guest speaker Prof. Christina Murray, Senior Adviser on Constitutional Matters, Mediation Standby Team, Mediation Support Unit, Department of Political and Peacebuilding Affairs, United Nations and Professor Emeritus of Constitutional and Human Rights Law at the University of Cape Town, continued the focus on the future of constitutionalism on the continent and, in particular, on the need to foster the next generation of constitutionalists.
“It’s concerning how little students know about apartheid,” she said. “People don’t remember what it’s like living in a military state. I am despondent about constitutional participation in Africa.”
“South Africa had an enormous level of preparation and deep thinking by stakeholders in the transition – that doesn’t happen everywhere,” she added. “The South African solution was right but has not been properly carried through.”
‘We need teaching that builds technically good lawyers but also invests in remembering the history and building the imagination. You need imagination to understand both history and the present. The power of history combined with imagination allows you to see alternatives. We need to use creative teaching to show students how to think through problems historically. We need to help to build constitutionalism for the situation to not be as despairing as it is now.”