In­clude our Con­sti­tu­tion in the school cur­ricu­lum

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As South Africa cel­e­brates 22 years of free­dom, I have a plea: our Con­sti­tu­tion must be in­cluded in the school cur­ricu­lum. Why? The doc­trines on which it rests are com­plex and the ju­rispru­dence ev­i­dent in high court rul­ings is barely grasped by the pub­lic. The costs of ap­proach­ing our courts are pro­hib­i­tive and pre­vent the fast­track­ing of our con­sti­tu­tional ju­rispru­dence. This is es­sen­tial if we are to ed­u­cate cit­i­zens on what our democ­racy means in prac­ti­cal terms.

When Pres­i­dent Nel­son Man­dela signed our Con­sti­tu­tion into law in Sharpeville on De­cem­ber 10 1996, we and the rest of the world cel­e­brated. How­ever, in the flurry to get this doc­u­ment ap­proved, we omit­ted an im­por­tant step: plan­ning ahead for pub­lic par­tic­i­pa­tion.

We should have made the learn­ing of our Con­sti­tu­tion – es­pe­cially chap­ters two and nine of the Bill of Rights on state in­sti­tu­tions sup­port­ing con­sti­tu­tional democ­racy – a com­pul­sory sub­ject for learn­ers from 1997. We would have had a gen­er­a­tion of con­sti­tu­tional war­riors by now.

The Con­sti­tu­tion can only serve to trans­form our so­ci­ety when it is taught to school pupils whose fu­ture we hold in trust. This starts from the ba­sics: many peo­ple do not know that it is the Con­sti­tu­tion, not Par­lia­ment, that is supreme. And it would en­sure that dog­mas do not sur­vive.

For in­stance, Judge Ni­co­l­ine Janse van Nieuwen­huizen saw noth­ing wrong when de­liv­er­ing her judg­ment or­der­ing the re­lease of Janusz Waluś on pa­role in say­ing that Lim­pho Hani, the widow of as­sas­si­nated Chris Hani, should move on with her life. The judge failed to ap­pre­ci­ate that Hani’s widow has the right not to move on un­til such time as she feels ready.

We see our Con­sti­tu­tion as an en­abler of rights only and ap­pear ig­no­rant of the at­ten­dant flip side, which en­joins us to ap­pre­ci­ate the huge re­spon­si­bil­i­ties at­tached to these rights.

In the process of ex­er­cis­ing their demo­cratic rights, ser­vice de­liv­ery and stu­dent protestors con­sciously van­dalise prop­erty they will need a day af­ter their con­cerns have been ad­dressed. The rule of law is com­pro­mised un­der the guise of civil so­ci­ety ac­tivism: no pun­ish­ment is meted out to most of those who dam­age prop­erty while ex­er­cis­ing their right to protest. The right to strike is guar­an­teed by our Con­sti­tu­tion, but only as long as due process is ad­hered to. Why does this hap­pen? The an­swer lies in our col­lec­tive fail­ure to ed­u­cate our com­mu­ni­ties from a ten­der age, in a for­mal way, about their con­sti­tu­tional du­ties vis-à-vis rights and obli­ga­tions.

The Pub­lic Pro­tec­tor, a state in­sti­tu­tion es­tab­lished to sup­port our con­sti­tu­tional democ­racy, is re­garded by some as an anom­aly. This re­veals an ig­no­rance about the con­sti­tu­tional in­sti­tu­tions cre­ated to sup­port democ­racy. Par­lia­ment could not sim­ply ig­nore her Nkandla re­port, as the Con­sti­tu­tional Court found, be­cause par­lia­men­tary sovereignty is not supreme. In­stead, it should have gone to ju­di­cial re­view.

With our democ­racy still so young, it is not too late to in­tro­duce this sub­ject at school and ter­tiary level, for stu­dents read­ing for non-law de­grees. It should be com­pul­sory for such stu­dents to study con­sti­tu­tional law for non-de­gree pur­poses. Ad­vo­cate Muofhe is spe­cial ad­viser to the min­is­ter of pub­lic ser­vice and ad­min­is­tra­tion, Ad­vo­cate

Ngoako Ra­matl­hodi

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