Constitution Makers on Constitution Making: Hassen Ebrahim on South Africa’s Constitution

Hassen Ebrahim

Hassen Ebrahim was Executive Director of the Constitutional Assembly of South Africa, and is an advisor on constitution building. He participated in the construction of South Africa’s constitution. He is the author of the chapter “Decisions, Deadlocks and Deadlines in Making South Africa’s Constitution” in the forthcoming book Constitution Makers on Constitution Making.

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Back then as a child, when it was normal that we couldn’t ride on all buses and sit on all park benches and be allowed to go and watch a movie in a cinema together. Today, our children simply don’t know that we had those experiences. But in it lies the wonders of the successes of what we have achieved. And if we managed to change that, then I think we have the ability to change from where we are currently into the future.

Hassen Ebrahim

Key Highlights

  • Introduction – 0:50
  • Meaning of a Constitution – 2:54
  • Hassen’s Political Journey – 10:07
  • Constitutional Process – 20:22
  • Unifying Event – 29:15
  • Areas of Disagreement – 36:48
  • Future of South Africa’s Democracy – 46:18

Podcast Transcript

On September 4th Chileans overwhelmingly rejected a new constitution after more than two years of protests, negotiations, and debates. I had been cautiously optimistic about the process, because I know Chileans desperately want a new constitution. Their current constitution was written during the brutal Pinochet dictatorship. So, Chileans wanted to construct a democratic constitution through more a democratic process. Its failure raises many questions about what went wrong. 

But rather than critique the Chileans, I want to offer an example where the construction of a constitution was a success. South Africa’s process is considered almost an ideal case. Its country continues to have problems, but its constitution remains a source of unity and strength. 

Today’s guest is Hassen Ebrahim. He was Executive Director of the Constitutional Assembly of South Africa and is now an advisor on constitution building. He knows first hand the challenges for any nation that tries to write a new constitution. We talk about the events that led to the process and the techniques used throughout it. Hassen conveys some of the same ideas mentioned in earlier episodes, however they have a more visceral tone. The process in South Africa was not some theoretical idea for him. It was a key event in the history of his country and a life-changing event for him personally.

Like always you can find a full transcript at democracyparadox.com. This is my conversation with Hassen Ebrahim…

jmk

Hassen Ebrahim, welcome to the Democracy Paradox.

Hassen Ebrahim

Thank you very much. Thank you for having me.

jmk

So, Hassen, as I’ve studied constitutions and looked over some of the theoretical ideas behind it, I find that some people look at constitutions as purely legal documents. I see that a lot in the United States. But for others, it has an emotional significance. It’s more than just a legal document. It means something to the people of that country. When we think about South Africa, your country, what does the South African constitution of today mean to you?

Hassen Ebrahim

I think it’s a pretty relevant question and very useful as well. Without being too general about the issue, my sense is that it happens more in developed countries where people have been allowed and afforded the opportunity of taking constitutions for granted where they’ve been purely legal documents. But in countries like ours, which are undergoing dramatic changes, political, economic, social changes, that one finds a constitution are much more relevant.

So, in South Africa, the constitution has become a very vibrant and dynamic document. Hardly a day goes by that the constitution has not been discussed in our current context. The key issues in South Africa mean that people are challenging and debating issues in the constitution relating to its transformative nature, because a way in which the constitution came into being was intended really to transform the nature of society that we experienced in the past and change it into what it should be.

So, people are experiencing life as they are experiencing it are wishing and hoping that it could transform it in different ways and they’re looking at the constitution in that regard which is why, of course, in South Africa, the Bill of Rights occupies quite a big part of our debate and discussion primarily in so far as it relates to the transformative nature of the constitution. So, it does have great emotional significance for us and very practical significance. We are debating it almost on a daily basis in quite a robust and dynamic way.

jmk

So, when you say that you’ve been debating it within South Africa, are you talking about everyday citizens or are we talking about politicians in parliament who are participating within these debates?

Hassen Ebrahim

I think all of society is participating in debates. I think politicians less so than the broader majority. Currently, South Africa is facing a challenge, which is primarily that it is the most unequal society in the world. People ask questions, related to whether this constitution has benefited society, because we are such an unequal society. The rich become richer. The poor have become poorer. Unfortunately, there are racial connotations to that. So, the question is how capable the constitution is of transforming our society and the fundamentals in our society. That is a major issue. There’s an issue amongst young people who also feel excluded from society, the economy and politics.

So, yes, there are a number of debates in society taking place and it affects all sectors of society, not just the legal fraternity and not just politics, but broader society. It is a subject of a tremendous amount of debate. So, in a sense, there’s a great deal of vibrancy and robustness. The constitution is the arena within which that vibrancy takes place.

jmk

South Africa is regarded as a very vibrant democracy and I live in the United States where I feel that we have the same kind of conversations about the constitution. Not the same topics, but it’s something that just everyday people are talking about. What is constitutional? What is it that the constitution should be protecting, particularly within the bill of rights? Do you find that that’s common in other countries? Because you’ve studied and worked on constitutions in so many other places. Do you feel that it’s specific to places like South Africa and even the United States because they are democracies or do you feel that most countries feel the same way about their constitutions?

Hassen Ebrahim

I think many, many do. I won’t say most. But many do. Specifically in the current climate, we are finding where countries are going through tremendous changes. The world is going through tremendous changes becoming a global economy. The crisis is in different parts of the world whether it be Ukraine, whether it be the Middle East, whether it be economic, whether it be violent conflict. But there’s a number of conflicts and issues which make the world an ever changing and faster changing world that I think is beginning to force people into reflecting on whether the legal framework within which we live in different countries are accommodating the changes and the dynamics that are beginning to take place.

Change is beginning to take place at a much faster pace than it did over the past decades. Therefore, there are challenges to the legal frameworks within which different countries are operating whether it be because of conflicts, whether it be because of challenges, economic, cultural, and today, even climate changes. So, the challenges people are facing are much more dramatic and people are beginning to look at enablers. Therefore, the legal framework and particularly the constitution as one of the critical enablers are being considered as part of that change. People are reflecting on it in greater numbers and in a greater number of countries. So, the constitution is becoming much more relevant than it did perhaps 40 years ago. Today, constitutions in many parts of the world are becoming greater centers of debate and discussion.

So, my sense is that in all academic institutions, you will begin to see a change where academic institutions and particularly law faculties will start focusing more on constitutions, because you’ll find a greater amount of interest both from the institutions of state as well as the broader public because of the discourse and the debates that are becoming more vibrant. So, I do believe that constitutionalism will occupy a major part of the law and legal changes that will take place within the debates and discussion. So, that’s my sense of where the world goes. Certainly, in the developing part of the world, it definitely is. I think in the developed part of the world, it’ll become increasingly so as well.

jmk

So, Hassen, I’m speaking to you as somebody who’s become an expert on constitutions today. But like everybody, to be able to get to where you are today is always a journey. Can you just kind of tell us a little bit about how you got involved in politics?

Hassen Ebrahim

Well, I think in South Africa, we are a generation of people that came out of the conflict arising from the 1976 student uprisings. So, I was a student in 1976 and was in university at that point in time. South Africa went through a great deal of turmoil and a great deal of challenges, primarily from the young people in educational institutions and so on. But being a black South African, it isn’t very difficult to have been politicized at a very early age in my family and in the community. So, based on my origins and my location and my community, it wasn’t very difficult to take an interest in politics. So, going to university, of course, that was spurred on even further and became much more intense with the 1976 uprisings.

We were taken up in that engagement. It forced me into greater political activity. Then finally into exile and into active struggle against the apartheid state as it was then. So, that was my involvement in politics. I spent most of my time until 1990 in exile engaged in the anti-apartheid struggle. But in 1990, coming back to South Africa, it wasn’t very difficult also to get involved as a young lawyer in the processes, because politically the issues in South Africa in 1990 to 1994 related to the constitutional negotiations. So, I was fortunate enough to be given the task of joining the administration of the leading party, then the African National Congress and its negotiations team. So, I got a free ride into the ringside seats into how changes were being negotiated in a country.

It was ringside seats, but sometimes as a participant, not just as a spectator. I got to understand the inner workings and organization of the process of negotiating the constitution and was involved in many of the critical aspects of it between 92 and 97. So, I saw the negotiation of the first constitution, the interim constitution, as well as the final constitution. I was involved intricately in both processes. You know, in organizing, in undertaking, and in managing those processes. So, I got involved intricately in that sense.

jmk

When did you realize that this is really going to happen? That you guys are going to be able to end apartheid, and not just that, but create an entirely new constitution and through that a new vision for South Africa. When did you realize that that was a real possibility?

Hassen Ebrahim

Let’s start with the last bit of your question which is the vision for a new South Africa. The vision for a new South Africa had emerged over many, many years since the early 20th century. As people were resisting and opposing apartheid, people were beginning to conceptualize what should replace apartheid. So, that’s where the visionary aspects of it came in. So, there are a number of key milestones in the development of the vision for what the future South Africa should be. Part of that was born out of what we referred to as the Freedom Charter in 1955.

So, the Freedom Charter was a critical document which really was an expression of people’s hopes and aspirations of what the future society should look like. It was very much inspired by what took place in the establishment of the United Nations. South Africans were beginning to ask themselves, ‘We are supposed to apartheid, but what is it that we really want?’ So, people were beginning to develop that vision of really what we needed. But for many years, between 1960 and 1990, political activity amongst opponents of apartheid were primarily banned. So, it was very much in the underground as it were. People focused more on resisting apartheid and opposing apartheid rather than focusing their attention on constitutions which really wasn’t very relevant.

But it suddenly became to the fore when proponents of apartheid and those resisting apartheid began to recognize that unless their conflict ended at the negotiating table, the country would end in total ruins. Therefore, there was a need for people to talk. That started in 1990 with the release of Nelson Mandela. People began to focus on possibilities of changing. The unbanning of organizations opposing apartheid meant that free political activity was afforded and therefore there was an engagement between the differing sides to the conflict. That engagement between the different sides to the conflict needed form and shape and that form and shape established the arena within which constitutions were being discussed.

So, it was really primarily after 1990, between 1990 and 1997, that the thought of a constitution became center of mind amongst all players politically and you found different processes coming into being which then resulted into the constitution that we currently have.

jmk

So, you’ve brought up the Freedom Charter already and that definitely set the vision for what the constitution was going to look like or what the objectives were. You also mentioned about something called the Harare Declaration that helps set up the terms for the process. Can you describe what that is and what exactly that did?

Hassen Ebrahim

Well, the Harare Declaration was an important part of our processes. Why? Because it came about in 1989. Now the Harare Declaration took place really at the end of the resistance to apartheid when the African National Congress began to understand that at some point or other the conflict would end up at the negotiating table. When you look at the a ANC’s ideological development, they recognized from the Vietnamese that no matter how long the struggle would take place, most struggles and conflicts end up at a table, not on the battlefield. Most conflicts in the world were never resolved on the battlefield.

So, the foresight of leadership in the African National Congress suggested if our struggle were to end up at a negotiating table, it is better that we started preparing ourselves and focusing our minds on the possibility of the end of apartheid through a process of negotiations rather than purely armed struggle. By the end of the eighties, both the apartheid government and those opposing the apartheid government had recognized that neither side were going to defeat the other side. Therefore, there was a need that they would have to engage each other, unless South Africa was going to be a scorched earth, and they recognized that.

So, the Harare Declaration, inspired by the leader then Oliver Tambo, was a declaration made, not just by the ANC, but engaged with all the key African countries which suggested that should negotiations take place, these were the fundamental conditions on the basis of which those negotiations should take place. So, for example, South Africa should be a free and democratic society that should be based on a separation of powers. That it should be based on a Bill of Rights and a number of key principles were then identified, which is when a key aspect and cornerstone of our constitution came into being, which is the constitution has to be based on fundamental, constitutional principles, which all could agree upon. So, it set the ground for future negotiations.

So, when that took place in 1989, it laid the basis for resistance organizations like the ANC were allowed free political activity and started a process of engagement between the different parties. They were guided by documents such as the Harare Declaration, because it set out a basis that we cannot talk to each other unless we talk about a society that is going to be freely democratic with regular elections and a universal franchise. I mean, today, it may sound like an absurd thought, but back then not everybody was allowed the right to vote. A fundamental cornerstone of democracy, everybody should be allowed to vote.

But it’s not just voting, but voting in a democratic country where there would be regular elections with the separation of powers and a bill of rights as some of the cornerstones on which a future legal framework or constitution could come into place. So, that’s what the Harare Declaration did for us. It set the basis for the initial engagement between the ANC and the apartheid government and laid the basis for the discussion and negotiations that subsequently took place.

jmk

Now, something that you write about is that setting the terms of the process, like setting the rules that would govern the process itself of creating the constitution actually took longer than the creation of the constitution itself. How long did it take you to establish the rules and the terms to create the constitution through the negotiations to do that as opposed to how long it took you to create the constitution itself?

Hassen Ebrahim

I think most of the time and the pain, anguish, and anxiety revolved around process rather than substance. Once we got over the process issues, the substantive issues were much easier. So, yes, what we’ve learned from our experience is that process is as important and sometimes more important than substantive issues. So, including everybody, engaging everybody, having an open approach is much more important and critical in situations where the conflict is as intense as it was, because you needed to get all the constituencies on board and make them feel included and enable them to participate in the process in an effective way.

So, it’s really very important to ensure that in countries where constitutions are being made, the process is right before the substantive aspects can be attended to. That’s one of the key lessons we’ve taken out of our process when you’re making decisions about the South African constitution whether it’s about the substance or the process.

jmk

Did you feel like the decisions that you made were based more on consensus or did you feel like it was constant negotiations that led to compromises?

Hassen Ebrahim

Perhaps a different way of thinking about it would be that what we learned very painfully was that there needed to be consensus on the need for compromise. The only consensus there was going to be was that both sides would have to compromise. There wasn’t going to be total consensus. That’s true for part of it. But for a lot of it, what people learned once they got involved in the process at a substantive level that on the major issues South Africans were really not far apart from each other in terms of what they envision a future society should be like. So, it’s a lesson I have learned in other countries with conflict is that sometimes we get so focused on what divides people. We don’t focus enough on what there is consensus about.

In most countries where constitutions have been considered, there is already a social, cultural, historical, political, economic context within which there’s a great deal of consensus. But what people focus on is what divides people rather than what unites people. So, in South Africa, we always focused on what divided us and not what we were agreed upon. But once we set the rules and we gain consensus on the process, the substantive aspects were fairly clear and that’s where the area in which compromises needed to take place. So, there needed to be consensus on a process which would enable a situation in which compromise would be made much easier. Compromises are not always easy and those compromises needed to be facilitated and negotiated.

When a number of commentators historically have looked at the process and the role that we played, they called us midwives, because we saw this birthing of a constitution. That birthing of that process needed a consensus, consensus on the process. But then the understanding is that there had to be a set of compromises that would take place. So, yes, you had both consensus and compromise. But it was more a consensus that compromise would have been necessary.

jmk

South Africa’s an interesting case for numerous reasons. One of them is that the legacy of apartheid, I mean, must have brought up just intense feelings between the two different sides. Were you surprised at the amount of agreement that you found between the different sides in the process of creating the constitution?

Hassen Ebrahim

Part of finding agreement was to get people to focus on where they were united first, rather than where they were divided. The inclination in countries coming out of conflict is to focus on what divides them and not to focus on what unites them. But in managing the process…. And that’s why where we excelled was we found a process that could be managed in a way in which allowed people to focus on those areas that they could find agreement on. So, we sort of made parking lots. If we couldn’t agree on something, put it in the parking lot. Let’s carry on with something that we could agree upon.

So, in the end what took place was that people came to realize that the areas of agreement were actually much bigger than areas of disagreement and that became a natural organic process of understanding as it came through the negotiations itself. Once you negotiated all the different aspects of the constitution, you began to see that we’ve actually got most of this constitution in place. There are now very few remaining issues that need attention and people began to see that they were not really that far apart from each other. There were very few clauses.

So, if you look at the number of deadlocks, there were very few deadlocks, but those came in at the end of the process, because we allowed them to come at the end of the process. If we forced them into the beginning of the process, the process wasn’t going to move forward. So, we put them into a parking lot and allowed the process to carry on and people began to realize that we are almost there.

Therefore, the disagreements are actually a smaller number than the agreements. People were beginning to understand and see that we are beginning to see a vision of a new South Africa coming into being by consensus. Those areas where we disagreed were actually not so many. They were intense and very difficult, but not so many. Therefore, the process was much more manageable. So, it gave people a confidence in the process and in the future.

jmk

What were you most surprised on that you found agreement on? Was there anything that you expected there to be strong disagreements and you found out that all the different sides really saw the issue the same way?

Hassen Ebrahim

I think you’ll discover that those issues really related to our Bill of Rights. I’ll give you some examples on the Bill of Rights which I think were of a dramatic nature. So, yes, we overcame some of the basics which would relate to a democratic society. Generally, everybody accepted that, individual rights, and so on. But then some of the dramatic issues that we found agreement on that you could be really surprised on was the article dealing with, for example, the principle of equality. Equality in all its different manifestations between men and women, between different peoples in different aspects of society. But very importantly, was that we needed to act in a way in which to bring about that empowerment process, to bring about the equality, because we needed to recognize that fundamentally South Africa was an unequal society.

Therefore, our equality provision, which to date is one of the most dynamic provisions in the world when you look at the Bill of Rights, and still a centerpiece and a real example. It was a trailblazer, but we found agreement on that fairly quickly. It surprised us, because I think all parties began to recognize it was necessary to have equality even between different genders, different societies, cultural, political, economic, but more than that, people recognize it was important to have an empowerment process. So, you needed to empower women to compete equally with men. You needed to empower black people to compete equally with white people. So, we overcame that with relatively less of a challenge than we anticipated would be the case.

jmk

The way that you’re describing it, it sounds like the constitution making process was really a unifying event. That really surprises me, because I would think of it as being very divisive where you’re debating and you’re disagreeing over different aspects of where the country’s going to go. But am I following you right? Was this really a unifying event on the whole?

Hassen Ebrahim

I think it was a unifying event, but not without conflict. That process of unification that took place was littered with many, many bodies unfortunately. It truly was. Many people died in that process, but it was a unifying one. So, there was conflict that was dramatic. Incredibly so and very painful in many respects. I remember very vividly how many times during the process of negotiation one wondered whether we shouldn’t be looking for those armed caches again, because conflict was so close by at any moment. There would be a breakdown and there were in fact breakdowns of the negotiations.

So, it wasn’t a smooth process by any means. It was conflict ridden. It wasn’t an easy ride. It was a very difficult ride. It’s a process that spluttered along not in any smooth way, but in a very jagged, very difficult, very awkward way. If you look at it from afar and look at it 30 years ago, you may want to think of it as smooth, but it wasn’t. It wasn’t a smooth process by any means. South Africa was in turmoil. The streets were on fire. People were in total conflict. Revolution and violence were the order of the day, but we needed to make sense of it. In making sense of it, that’s the unifying part of it all.

So, it required leadership. It required visionary foresight to actually understand that through all of this chaos, we could actually bring about peace. That focus and that driven attitude to focus on peace is what brought about the unifying factor. So, it was a great fortune for us that sanity prevailed, because for much of the time, between 92 and 97, well, 92 and 94 primarily when the interim constitution was concluded, South Africa was on a knife’s edge. So, it certainly wasn’t a very smooth process. But on the whole, it was unifying because people wanted 1994 to take place when elections took place finally, when the interim constitution was put in place. But right until the last moment it was a nail-biting process, a very difficult one.

But in a strange, kind of a way, a unifying one, because the leadership had focused their mind on overcoming the challenges that they saw and the bigger the challenges and the more people were dying and in conflict, the more driven people were that we needed to overcome this. People realized that we really needed to find solutions otherwise the alternative was, as they would say, too ghastly to contemplate.

jmk

You’ve emphasized the importance of leadership within the process and South Africa’s had some truly dynamic leaders. Nelson Mandela was obviously somebody who was just a transformational leader at the time, but Cyril Ramaphosa, the current president of South Africa, was also very involved in the constitutional process. I’m sure that there’s a lot of other people that are maybe forgotten or overlooked. Who were some of the people that provided some of that leadership and what was their leadership like? What made it so special that you were able to make the process a success?

Hassen Ebrahim

The leadership in the country was created and formed out of the furnace of an intense conflict. So, that intense conflict brought about leaders on all different sides. That leadership was born out of a need to have a vision, a vision of a future society. People may have had different aspects of primarily the same vision which is currently contained in our constitution. But their hopes and aspirations, which help them overcome their challenges and the difficulties and understanding that things were so juxtaposed. So, opposed. So, the contradictions were so major people found that they were compelled to find ways to make things work. So, when you look at the South African constitution, then you will see that there was an absolute need to make things work.

There are clues in all parts of the constitution that will show you that there was this approach and attitude where people wanted to find each other and how they attempted to find each other in having a more inclusive and participatory democracy. So, if you look at the nature of our constitution, it is one of the most inclusive and participatory aspects, that was a glue. It was part of the solution that we found. It is the one society where you found fascists and communists actually sitting on opposite sides of the table and coming to an agreement and holding hands and singing joys and blessings when we saw the adoption. I mean, we saw people on total opposite sides actually coming together, enemies becoming colleagues and friends. But it was in principles of inclusivity that we needed to include all sides.

Secondly, that we needed to ensure that there was a participatory process and engagement, so people felt included and participated in it. So, even today, South Africa is an intensely, difficult country to be in because of the robustness of the conflicts and differences and the debates and so on. But therein lies part of the solution which is that we ensure that the legal framework in our constitution allowed for a participatory process. Therefore, robustness then became that safety mechanism. So, instead of people looking for measures outside of the legal framework, they were compelled to remain within the legal framework and therefore the constitution to make things work.

So, if we didn’t have this constitution… I mean, they say that with every revolution comes a counterrevolution. Well, we’ve had ours. We’ve had the revolution and the counterrevolution, but the constitution remains intact. The country remains intact. We still remain strong, vibrant, robust, sometimes very worrying, but it still continues. Not in a rickety manner, but in a very bold way the country’s continuing. In that the constitution has been an incredible success. An incredible success, because it allowed for these differences to be had in a robust manner. But to allow for that inclusivity in all the different levels of its spheres of government and society and to allow for people to participate in the process.

jmk

We focused a lot on the areas of agreement and the ability of the constitution to unify. Can you shed some light on what some of the areas of disagreement were or what parts of the constitution really drew the most focus from the participants in terms of longer discussions?

Hassen Ebrahim

How very interesting. I think that’s probably a very useful sort of question to ask, because it’ll reflect on the nature of the constitution. Towards the end, our key deadlocks were the right to lock out. Aside from the right to strike and the right to form unions, the right to lock out workers became a major deadlock issue. The right to education became a major issue. So, language used in school was a major deadlock. The property clause was a very big deadlock issue. In fact, the property clause still is a big challenge, because land redistribution has not really taken place effectively. Many people in the country rightly or wrongly believe that ownership of land will change the economics of the country. That may be partly true or terribly wrong, but the right to property and land redistribution was a major deadlock issue.

Now, one would’ve thought it would have been areas of the executive and legislature and the judiciary and all the other major aspects of constitutions. It wasn’t. It was those areas located in the Bill of Rights that became major issues of contention and deadlock. So, deadlock and disagreement were focused very much on our Bill of Rights which is why our Bill of Rights today still remains one of the leading documents in the world where many jurors and constitutional experts look at it with some interest and look at our case law coming out of our constitutional court with a significant amount of attention and interest.

So, people are looking at the transformative nature of our constitution, where our socioeconomic rights become so fundamental, and how our courts have taken to interpreting those rights in a transformative nature that has helped a great deal in addressing some of the conflicts we currently have. So, yes, it’s fairly interesting in terms of where the deadlocks and disagreements were.

jmk

So, Hassan, the South African constitution is widely considered a success. I mean, it’s considered something that’s been inspirational and an influence on other constitutions throughout Africa and throughout the world. But you’re also looking back on it after almost 30 years now and you’ve got a lot of experience dealing with constitutional processes in other countries and other constitutions that you’ve seen created. Is there anything that you regret? Is there anything that you wish the South African constitutional process or the substance in the constitution would’ve included that you think would’ve been achievable that might have been a missed opportunity?

Hassen Ebrahim

Yes and no. I think we we got most things right. But there’s a phenomenal study that that took place which suggests that constitutions undergo dramatic, almost complete change and overhaul over a period of 17 years or so. Now constitutions are not static and can never be static, because society is not static. When we started our conversation, we talked about the world and the pace of change in the world taking place at a faster rate than ever before. The changes taking place in society are much more dramatic now than ever before which means that the legal framework needs to be reviewed with greater intensity than before. Constitutions can never remain static, because society is not static.

So, if you look back, could we have done things different and better? Some things, yes, I think we could have done different or better. For arguments sake what is being debated in the country now is our electoral system could be better. But at that point, it was right. It was correct, because proportional representation is very important. Today, we recognize that greater accountability is required. We need greater accountability and more direct accountability by our politicians to people. So, people are debating that and wanting to change our electoral system and the way in which a constitution looks at it. I don’t think we got that wrong. I think we got it right except that I think society has changed and requires us to make a fundamental change on it.

The second part you asked was about consensus or compromise. Well, we don’t have a federal society, but we have a quasi-federal society and part of that was dividing the country into nine provinces. So, nine provinces were a difficult thing to actually achieve. Today, I think, it is clear that nine provinces are unworkable. Why? For two reasons, one, many of those provinces are not economically sustainable. They still cannot sustain themselves. So, they depend on the center and the national budget to actually fund them and survive. But two, I think what we did in the constitution is to bring about an inclusive and participatory process. We created far too much government and far too much government made governance difficult. Therefore, levels of corruption became greater. So, we had far too much government with very little governance.

So, when we talk about the failing of our state, it’s in areas and aspects of governance, particularly corruption. When we look at the levels of corruption, they are far too intense and need to be attended to. So, back then nine provinces may have been right. Right now, I think nine provinces are not right or cannot be right. The amount of government is far too much. I think it requires major change and revision. So, I don’t know if it is a question of whether we got it right or wrong and whether we could have had the foresight, but we needed consensus that compromise was necessary.

Some of those compromises are unpalatable now, but were palatable then and were necessary to overcome the immediate challenges and differences. So, that’s how we actually brought about a peaceful society and which in a great sense is why our society is still relatively peaceful. We haven’t broken out into violent conflict when in fact there were great deal of opportunities had our legal framework not afforded that opportunity or allowed for it. But it created new problems. The new problems we currently have is weakness in our governance. Many of our local government structures are actually not viable financially, economically, not sustainable. So, corruption and governance are weak which I don’t think we could have foreseen back then, but now it’s becoming very clear and evident.

So, it’s whether the politicians who have a vested interest in having that amount of government will be prepared to give it up themselves. Those are the big challenges, I think, society currently faces. So, if you’re looking at our constitutional challenges, then I think our constitutional challenge lays in our ability to deal with electing the right people, having more accountable politicians, and accountable government, but also having better governance which will ensure better protection against corrupt activities and capture of the state which is what are popular concepts and debates currently. How it could protect and immunize our society from those sorts of challenges. So, it’s issues relating to development. How we continue to develop our society, our economy, and our country, rather than the fundamental issues which 30 years ago we faced which was how do we bring about peace.

Well, we have attained peace. But now I think we need to do more than peace. I think we need to get better equality, reduce the gap between the rich and the poor and improve the lot of the majority which we still haven’t achieved, improve education, improve our social services, but look at ways in which the constitution can facilitate and enhance that. So, we need to stop paying such a lot of money on government structures when, in fact, we should pay more money on social services like health education and all sorts of aspects.

So, I think there’s room for a dramatic amount of change which are necessary now. But back then we could not foresee. If we could foresee, we needed to bring about peace, because peace was more important than other issues. Well, we’ve got peace and we’ve kept peace, but now we need to build a society that is vibrant economically and much more successful economically and politically. That’s what I think the challenges currently are.

jmk

So, Hassan, to follow up on that, you’ve laid out some of the challenges for South African democracy and South Africa’s democracy has 30 years’ worth of history behind it now or almost 30 years’ worth of history. Are you optimistic about the future for the next 30 plus years for South Africa’s democracy?

Hassen Ebrahim

I think one of the key elements and successes of the last 30 years was just a constitution of hope. It is that hope that allowed and created an optimism, which I sometimes doubt whether it is eternal, but I think it’s still persisting. So, there’s a great deal of optimism. If we have managed to overcome some of the worst challenges in the world in bringing about the constitution that we currently have, I think we have the same ability to actually take this country from where it is to where it should be. Everybody recognizes it is not in the space where it should properly be and that there are tremendous changes that are necessary, but certainly optimistic that those changes are possible if only because of where we’ve come from having seen the changes that we’ve undertaken which looking back were unforeseeable.

Back then as a child, when it was normal that we couldn’t ride on all buses and sit on all park benches and be allowed to go and watch a movie in a cinema together. Today, our children simply don’t know that we had those experiences. But in it lies the wonders of the successes of what we have achieved. And if we managed to change that, then I think we have the ability to change from where we are currently into the future. So, optimism? Yes. Caution always because we have phenomenal challenges and you can’t underplay it. You can’t wipe it. You can’t sweep it under carpet. It’s going to require some brutal self-questioning and attention really to the issues. So, we are hopeful about that and I remain optimistic, but not unaware or impervious to the challenges we are currently facing, because they are phenomenal.

jmk

Well, Hassen, thank you so much for joining me today. This been such an honor to talk to somebody who was a founding father, if you will, of South Africa’s constitution and South Africa’s democracy. So, thank you so much. Thank you so much for the contribution you made to the recent book Constitution Makers on Constitution Making. Thank you.

Hassen Ebrahim

Thank you very much for this opportunity and thanks for this interview. Hopefully it’ll be of some value to people. Thanks. All the best.

Key Links

Read the Constitution of South Africa

Constitution Makers on Constitution Making: New Cases edited by Tom Ginsburg and Sumit Bisarya

Democracy Paradox Podcast

Joseph Fishkin on the Constitution, American History, and Economic Inequality

Donald Horowitz on the Formation of Democratic Constitutions

More Episodes from the Podcast

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