Special Hearings — Political Party Hearings — 1996-08-20

MR LEON: Thank you very much Colin for that very comprehensive chapter.  We move to the final aspect of our presentation which we have been asked to address Mr Chairperson, and that is the question of how South Africa can prevent similar abuses of human rights, from happening again in the future.
 Well, much of what I am going to say can be summarised simply by saying if the political climate is radically changed from the times we've moved, we have just described and if the constitutional system has fundamentally altered, then you have dealt with many of the problems and abuses which we have spoken about.
 And to a great extent that is true, it is not the entire truth, but it is a major part of the answer.  Because if you look at the picture which has been described so eloquently and exhaustedly by my colleagues, major problem constitutionally or legally facing the victims of violence, from whatever sides it came, was that during the relevant period, the sovereignty of Parliament prevailed, in other words Parliament could do no wrong, Parliament could enact whatever legislation it wished to and there was no constitution and there was no appeal against that except in very, very limited circumstances.
 There was therefore not an effective check on the abuse of power by the majority party in Parliament, nor on the abuse of power by the same party which formed the Cabinet and which was ostensibly but not in fact, accountable to Parliament.
 Now, we would therefore draw three conclusions from this period in order to prevent the repetition of this in the future   and that is for the new constitution to provide for certain fundamentals.
 And before I tell you what they are, it might seem trait Mr Chairperson, to mention the constitution, because we live under an interim constitution, the constitutional court is in the process of enacting a final constitution.  The relevance of it is of course constitutions can change and they can be changed on a relative majority, two thirds of the members.
 Therefore we believe that if your Commission is going to make a pro-active and positive recommendations, then whatever  Parliamentary majority might or might not exist from time to time, that this Commission should align itself with certain constitutional principles and suggest that they be carried forward in perpetuity in order to avoid the situation we have just come out of.
 The first is the obvious one that the constitution must be the supreme law and all institutions of the State  including Parliaments and the Cabinet must be made subject to its authority.
 Secondly, there must be a separation of powers between the Cabinet and Parliament, sufficient at least for Parliament to hold the Cabinet accountable for its policies and actions in a transparent manner.
 Thirdly within Parliament and while acknowledging and accepting that decisions will have to be taken by majority votes as determined and provided for in the constitution, the right of minority parties to participate in both the process of legislation and in the process of holding the Executive to account in a transparent way, must be entrenched and championed.
 We now move to the second aspect of the constitution, which is a Bill of Fundamental Rights and obviously the other problem, the constitutional problem, rather than the social problem, in the period under review, the period of oppression in South Africa, was that our constitution in the past contained no Bill of Rights, it did not adequately secure the independence, the judiciary, nor did it ensure in any manner, the impartiality of the Police, the Security Forces or the relevant Justice officials who have such an important ancillary role in the judicial process.
 Therefore we recommend that the new constitution must provide for a Bill of Rights ensuring citizens not only against discrimination, but also against violations of their civil liberties.  An independent and judicial system to which citizens can have easy access in seeking the protection of their rights failing which the rights themselves tend to be (indistinct) promises, incapable of enforcement.
 Thirdly and this to us is crucial, the Police and Security Forces, the Intelligence Services and the functionaries of the Department of Justice, to carry out their tasks in an impartial and transparent manner and to be subject to continuous monitoring by multi-party Parliamentary committees.
 Fourthly, we need independent competent institutions to support democratic accountability and transparency in government and the protection against the violation of rights.  We will also include here an independent body to oversee the electoral process.
 I repeat Mr Chairperson, that many of these principles and specifics are contained in the final draft constitution, it is critically important that they don't just end there, but that they be maintained in the future constitutional order of South Africa and not simply tampered or amended when they are found to be inconvenient or when the plea of necessity rears its head in the future again.
 We also touch  on the question which we made much of in our deliberations today, Chairperson, and that is control of information.  Inescapable fact as Mr Eglin mentioned, is that the National Party government had awesome powers in both controlling and manipulating the information flow which was made available to the public.
 Therefore the new constitution must ensure not only that the system of government is representative, but that the government of the day is accountable and behaves and is made to behave in a transparent manner.
 That all ministers must be accountable to Parliament and that ministers in departmental functionaries, must be accountable to multi-party Parliamentary's committee meetings in an open session, not simply to a majority party.
 Thirdly that the government of the day honours through word and deed the concept that the public has the right to know.
 Fourthly radio and television broadcasting must not be under the direct control of the government and that the freedom of the press and media is guaranteed.
 The other elements Chairperson, which is not constitutional and is not legal, is the question of the creation of a vibrant civil society failing which none of these things become possible because we don't have independent watchdogs, we don't have a self confident citizenry and we don't have independent structures, whether they are community organisations, trade unions, chambers of business, universities, the media, to actually be the necessary reinforcing barriers in a society which is to guard itself against the excesses of its own past.
 The constitutional step here obviously is to guarantee freedom of association and of expression and the right to freely and independently exercise political choices, but we also need to acknowledge in every day political and executive life, the important role of civil society.
 Might I move to the conclusion very briefly, the abuse of rights and the misuse of State powers Mr Chairperson, and Commissions, were the dark and sombre characteristics of the previous government and the defining characteristics of the apartheid State order.
 The struggle against this order led equally to the unleashing of incivil forces and the use very often, of undemocratic methods to enforce a general will on the majority of the population.  We have not dealt with these in any detail here, we have referred several persons and complainants in this regard to this very Commission and some of them have already given their evidence, but we do indicate that this was the other side of the coin which obviously this Commission will investigate very thoroughly.
 but accordingly and appropriately, our new constitution has set its face against the wrongs of the past, that the final certification of this important document will not be the end of the journey towards the new South African order, based on fundamental justice, liberty and equality, it is an important milestone in this never ending road.
 The new democratic South African order is a fragile plant, growing on an often stony terrain, it confronts a formidable set of challenges before it can take root, we mention only one of these which we think is of the utmost current.
 The rising tide of criminal violence and the culture of endemic lawlessness which confronts South Africa, we strongly believe that the right to be safe and secure is the fundamental right of each South Africa.  It is the foundation clause of the social contract between free citizens and the democratic government.  The record shows demonstratively and beyond appeal, that the previous government grossly misused this concept and was unconstraint in abusing elements of its power.
 However, and subject to the critical qualification that it respects the rule of law, the new democratic order must be seen to be decisive and determined in confronting the criminal lawlessness which threatens to blight our most cherished prospects of a just democracy founded on a culture of fundamental freedoms anchored in the rule of law, thank you Mr Chairman.