Include our Constitution in the school curriculum
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