Item 1131 - Speech by Mr Nelson Mandela Deputy President of the African National Congress to the Legal Professions

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ZA COM MR-S-1131

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Speech by Mr Nelson Mandela Deputy President of the African National Congress to the Legal Professions

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  • 1990-08-07 (Creation)

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Transcription of speech made by Mr Mandela

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(18 July 1918-5 December 2013)

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Migrated from the Nelson Mandela Speeches Database (Sep-2018).

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ANC Archives, Office of the ANC President, Nelson Mandela Papers, University of Fort Hare

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  • English

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TRANSCRIPT

Mr Vice-Chancellor, Mr Acting Dean of the Faculty of Law, Ladies and Gentlemen

It is an honour to be invited to one of my alma mater, the university where I prepared to become an attorney. It is important to have this opportunity to share views with the procession because this is a time when all need to work towards achieving a new consensus, regardless of whatever sectors they come from. We need as lawyers to meet like this in order to build on what we share, and play our part in the process of democratising South Africa.

I want, in this talk, to express my understanding of the role that law has played in both the oppression and the liberation of our people in South Africa. I will also refer to the role of the profession and professional organisations. Finally, I will also say something about the ANC’s legal and constitutional vision.

Law in South Africa, must of necessity bear a significant relationship to apartheid. It is after all a completely white legislature that has made the laws. Any judge, whatever his or her convictions, has to apply justice according to the laws which are in place. This is not to suggest that the role of the courts is merely to rubber stamp legislation. What I am saying is that judges cannot but act within fundamental constraints, that is, within the law of the country.

This characteristic of South African law derives from the very manner in which this state was created. The act of union was a product of the violent conquest of the black people of this country. The British handed over sovereignty to a tiny section of the population of South Africa. For the vast majority, dispossessed of their land and denied basic human rights, the independence of the country has always meant very little.

South Africa has never seen a country with national sovereignty. It has been a white state, with blacks held in subjugation, little different from that of a conventional colony. Because blacks are denied basic national rights, their situation is fundamentally different from that of American blacks who sought, in their Civil Rights struggle, the enforcement of rights to which the constitution entitled them.

In our case we struggle as we do, primarily because this constitution cannot grant us the rights that are considered fundamental in any democracy. We have to make a new constitution to ensure that w3e enjoy, for the first time, control over our own country. This right to self-determination is a prerequisite for the realization of any human rights.

But law is not merely an instrument of oppression. We recognise that lawyers in this audience and some who are on the bench have made important contributions, ameliorating the plight of the dispossessed and rightless, widening the areas of democratic action, protecting the individual against abuses by the repressive apparatus of the state. This is important work and we hope that those who have made these important contributions will be joined by many, many others, who want to assist in the birth of the new South Africa.

We recognise that the law itself, because of its origins, sets serious limits on any process of democratisation within the existing social order. But we also see the gains made through the courtroom as an important factor advancing and defending what rights we have.

We value the fact that many members of the legal profession have not been prepared to simply accept that the law is a tool of oppression, that they have helped us blunt that weapon and in many cases even removed its burden.

We also value another manifestation of the professions concern with social justice. The creation of public interest institutions, such as the legal resources centres, who have without charge, taken cases that have great significance. They have, for instance, helped set limits on state attempts to forcibly remove communities and they have intervened in many other acts of aggression.

Looking beyond South Africa, the international law struggle against apartheid has been a very important factor in awakening people to the extreme consequences of apartheid. We are indebted to the United Nations for drawing attention to the internationally criminal nature of apartheid and the fact that it is not merely morally wrong, but in violation of peremptory norms, from which no deviation is permissible (jus cogens)

We value the efforts of scholars and diplomats who have ensured that our struggle to free South Africa is recognised as just and that there is an international law obligation to support those seeking to end apartheid and build a non-racial democracy.

Having said something of our perspective on present-day South African law, it is necessary briefly to refer to our perspective for the future.

In attempting to come up with a blueprint, and certainly before introducing any fundamental changes, the ANC would consult widely with the profession as well as other interested groups and individuals.

Our perspective derives from our fundamental policy document, the Freedom Charter and this vision has been developed in the constitutional guidelines presently under discussion. The development of various sectoral charters e.g. for workers, people on the land, women, culture etc, would also contribute to future legislation supplementary to the constitution.

ANC constitutional and legal thinking is grounded on a rejection of the existing social order, founded as it is on injustice and based on the denial of basic human rights and self-determination to the majority of the population.

In seeking to redress this situation we bind ourselves to create a new social area and legal order through democratic means. No constitution in South Africa has ever emerged through a democratic process, from the bottom upwards.

Our constitutional vision does not entail the ANC imposing its constitutional model on South Africa. We will propagate a view but ultimately we regard the creation of a new constitution as requiring maximum consensus amongst all the people of South Africa. We want all South Africans to proudly swear allegiance to the new constitutional order and that means we are prepared to listen and learn.

The preamble to the Freedom Charter stresses:

“That South Africa belongs to all who live in it, black and white…”

The ANC has always been committed to nonracialism. We will combat black racism with as much vigour as we have fought white racism. Some of the leading figures and martyrs of our struggle, have been whites. We think immediately of the late Bram Fischer QC who died a prisoner, Ruth First who was assassinated and many others some of whom also have paid the supreme price. They have fought side by side with the many other heroes of our struggle.

These are basic human rights whose protection we will ensure through a justiciable Bill of Rights. These are legitimate rights of every person in South Africa.

We will not accept the entrenchment of group privilege in any form. We have lived with them for too long. Nor will we allow an ethnically based constitution. We believe that to freeze ethnic characteristics is to impede the development of a new nation, with a broad South African culture.

We also will not accept what are called ‘checks and balances’ but are in fact attempts to provide the white minority with the power to veto the decisions of the majority. Any constitutional proposal which seeks to prevent the reconstruction of South Africa, which seeks to preclude our meeting fundamental needs, is doomed to failure.

Turning more specifically to our policy framework, the Freedom Charter does two things. In the first place, it addresses specifically South African grievances- the denial of human rights in a manner specific to South Africa. On the other hand, it draws on the, then [in 1995] emerging international consensus over the question of human rights that are universally applicable.

The first clause of the Charter seeks to remedy the denial of self-determination, the disenfranchisement of the majority of South Africans. That is why it says ‘the people shall govern!’ And all organs of minority domination at every level must be replaced by democratic organs of self-government.

It goes without saying that all the laws that are used to enforce apartheid must be abolished. The new South Africa must not be burdened with the tools of repression that were part and parcel of an undemocratic and essentially unjust legal order.

The law must however play a positive role. It must have, as one of its functions, the objective of advancing the process of meeting the basic needs of all South Africans. Law must be transformed from being an instrument for division and oppression into one for liberation and for the creation of a democratic state.

In some respects these demands on the law are not foreign to the legal profession. The South African legal profession has faced an impossible task. Trained in a common law professional tradition that knows no colour distinction, it has had to constrain itself into the framework of apartheid law. So we must be talking about liberating the law. Who is better equipped than legal people to lead this struggle for liberation of the law?

It is essential that the legal profession retains its professional character. But it needs to be developed and democratised so that it plays a substantial role in the building of the new South Africa, now and in the future.

An important contribution towards the development of this democratic legal culture has been the emergence of organisations of lawyers specifically created to advance human rights. I refer, of course, to lawyers for human rights, the National Association of Lawyers and the Black Lawyers Association.

We understand that there were historical reasons for the establishment of three distinct human rights organisations for lawyers. But we need constantly to ask whether these reasons remain valid. One organisation, uniting these three organisations would be a very powerful force, whose voice would be listened to very attentively.

I want to conclude by stressing that it is vital that all people wanting democracy in this land should find ways of working with one another. We do not expect everyone here to join the ANC. We nevertheless do want to cooperate with all of you insofar as we can, in order to get rid of apartheid and rebuild this country as a non-racial, democratic state.

Apartheid must go. No one who wants peace, no one who is prepared to accept that blacks, too, have a right to freedom, need have any fear. Instead we all need to work harder than ever to bring peace to our land. I want to conclude by quoting these words from the Freedom Charter:

“Let all who love their people and their country now say, as we say here: these freedoms we will fight for, side by side, throughout our lives, until we have won our liberty.”

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Acquisition method: Hardcopy ; Source: ANC Archives, Office of the ANC President, Nelson Mandela Papers, University of Fort Hare. Accessioned on 15/01/2010 by Zintle Bambata

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