Rights and freedoms remain unfulfilled – judge

Thirty years after SA adopted one of the world’s most admired Constitutions, millions are still waiting to experience the rights and freedoms it promised, retired Constitutional Court Justice Mbuyiseli Madlanga has warned. Delivering the annual Rabinowitz Lecture at University of Cape Town's Faculty of Law on Friday, Madlanga said the country’s Constitution remained an extraordinary document. Still, its transformative promise could not be measured by the strength of its words alone. ‘The question is not whether a promise is made, it is whether and to what extent that extraordinary promise of 30 years has become a reality,’ he said. News24 says Madlanga, who is chairing the Judicial Commission of Inquiry into Criminality, Political Interference and Corruption in the Criminal Justice System, used the lecture to examine the gap between SA’s constitutional ideals and the lived experiences of its people. This year marks 30 years since the Constitution was adopted on 10 December 1996. It subsequently came into effect on 4 February 1997.

For Madlanga, the anniversary was an opportunity not simply to celebrate the Constitution but to ask whether the country had delivered on the promises at its heart. ‘The constitutional promise remains just that, a promise,’ he said. News24 reports, he acknowledged the international admiration for SA’s Constitution, describing its ambitions, purposes and promises as central to what made it distinctive. ‘Our Constitution is unique in its aspiration,’ Madlanga said. It promised freedom, equality, dignity and an improvement in the quality of life of all citizens. But Madlanga said the persistence of poverty, unemployment, inequality and inadequate access to basic services showed how far the country still had to go. He said: ‘We live in a society in which there are great disparities in the world. Many people are living in conditions of poverty. There is a high level of unemployment, inadequate security and, in rural areas, inadequate access to health facilities. Many of those conditions, he pointed out, existed when the Constitution was adopted. The constitutional project was therefore never simply about replacing apartheid laws with democratic ones. It was intended to dismantle the structural inequalities inherited from apartheid and to create a society in which constitutional rights could be experienced in practical terms.'

Madlanga also highlighted the consequences of a legal system that overlooks the emotional and psychological scars inflicted on survivors of violence. He described the experiences of women in the justice system as disheartening, says the Cape Times. He said the ‘violation of women within the court system, where they should be afforded justice, happens with disturbing frequency. Unfortunately, this happens in a context where women are before courts to access justice after suffering ills that include physical and psychological torment at the hands of men,’ Madlanga said. ‘These violations leave raw emotional and psychological wounds that may last a lifetime. How judicial officers handle and decide cases at the centre of which are such violations may mean the difference between contributing towards healing or opening up these raw wounds even more.’ 

Full Cape Times report

Full News24 report