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SPEECH: THE CONSTITUTION, STATE CAPTURE AND THE WAY FORWARD

FWDK 2017 2 FEB

Twenty-two years ago elected representatives of all the people of South Africa, gathered in Parliament, sitting as a Constituent Assembly, adopted a new Constitution as the supreme law of South Africa. 

It is important for us to remind ourselves of their objectives in so-doing.  They were:

  • to heal the divisions of the past and to build a society based on democratic values, social justice and fundamental human rights;
  • to lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
  • to improve the quality of life of all citizens and free the potential of each person; and
  • to build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

The drafters were fully aware of the need for safeguards to ensure that future governments would abide by the provisions of the Constitution and respect the rights and freedoms that it would enshrine.

  • They based the Constitution on the principle that it and the Rule of Law would be supreme and that any law or conduct inconsistent with the Constitution would be invalid.
  • They established strong and independent courts to uphold and interpret the Constitution. The courts would be independent and subject only to the Constitution, which they would have to apply impartially without fear, favour or prejudice.
  • No person or organ of state would be permitted to interfere with the functioning of the courts.
  • They also created special institutions to support the Constitution. These included a Public Protector, the South African Human Rights Commission, a Commission for the Promotion of the Rights of Cultural, Religious and Linguistic Communities; a Commission for Gender Equality; an Auditor-General; an Electoral Commission and an Independent Authority to Regulate Broadcasting.
  • These institutions would be independent and subject only to the Constitution and the Rule of Law. Like the Courts they would be required to be impartial and would have to exercise their powers and perform their functions without fear, favour or prejudice.

The Constitution required public administration to maintain and promote a high standard of professionalism and to provide services fairly, equitably and without bias - on the basis of the efficient, economic and effective use of resources.

  • When any organ of state contracted for goods and services, it would have to do so in accordance with a system that would be fair, equitable, transparent, competitive and cost-effective.
  • The Security Services - including the Defence Force, the Police and the intelligence services - would be required to act in accordance with the Constitution and would be prohibited from prejudicing or furthering any political interest.
  • There would be a National Prosecuting Authority with the power to institute criminal proceedings on behalf of the state which would exercise its functions without fear, favour or prejudice.
  • Finally, the executive power would be carried out by a President with extensive powers who would be required to swear in his oath of office to obey, observe, uphold and maintain the Constitution and all other law of the Republic.

Aye, there’s the rub.

The Constitution and all the rights and freedoms that it ensures depend to great extent on the integrity of the President and his willingness to abide by his oath of office.

The viability of the entire constitutional scheme rests on the integrity and ability of the people that the President appoints to the cabinet and to the many other key posts in the state sector that he is empowered by the Constitution to fill. In particular, it rests on their willingness and determination to carry out their functions with integrity, in accordance with the law; and in a manner that is without fear, favour or prejudice.

Speech by former President FW de Klerk
2 February 2018

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