South African History Online

Address of Nelson Mandela at his Investiture as Doctor of Laws

Soochow University, Taiwan, 1 August 1993

The Honourable President of the University,
Esteemed Members of the
Convocation,
Distinguished Members of the Faculty,
Ladies and
Gentlemen.

It is a singular honour and pleasure for me to stand before you to receive
this honorary degree from your University. Your decision to confer this degree
on me is really a recognition of the role of our organisation, the African
National Congress and a tribute to the valiant people of South Africa.

I am greatly honoured for the opportunity to share our thoughts with you on
this occasion.

Our country has entered a period of momentous change. We are witnessing the
painful birth of a united South African nation of equal compatriots, enriched by
the diversity of the colour and culture of the citizens which make up the whole.
These possibilities for fundamental and democratic transformation, away from the
life destroying system of apartheid, have been created by dint of struggle. We
have reached this stage because the people of South Africa, supported by the
efforts of the international community, have made this possible through their
determination to fight the good fight and not despair even during the darkest
days of racist tyranny.

But the history of opposition to the vile policies of apartheid is not simply
a narrative of struggle, defeat and renewal. There is a continuity in our
resistance to apartheid which encompasses a noble tradition. The people of South
Africa today face a new, and perhaps more daunting challenge, that of crafting a
democratic constitution.

Ever since the foundation of the African National Congress, we have fought
for a democratic constitution, for constitution freely adopted by all the people
of our country and embracing their aspirations. We rededicated ourselves to
these objectives in 1943, when the first ever bill of rights, "The African
Claims", was drafted on the initiative of the African National Congress. As a
liberation movement the ANC was unique in so firmly nailing its colours to the
mast of justice and human rights, decades before the issue came onto our
national agenda. We did so because these things mattered to us. This is what we
have been fighting for.

In a South Africa living through the nightmare of Dr Verwoerd's social
engineering, we adopted the Freedom Charter in 1955. This is a document born of
our struggle, rooted in South African conditions, and expressing the aspirations
of the disenfranchised. Because of its content the Freedom Charter has met with
international acclaim as an outstanding human rights document.

The Freedom Charter provides a sound moral basis for law and law making. It
posed an inclusive basis for citizenship, at a time when the apartheid policy of
racial exclusion, enforced through violence, was at its height. The Freedom
Charter was an attempt to project a system of values and practises which would
make it possible for people who subscribe to different principles to live
together.

During the last three decades, from prisons, from the illegal underground
organs of our movement, from our movement's machinery in exile, the African
National Congress has invoked the internationally recognised standards
concerning self-determination, the criminality of the apartheid system and human
rights as our response to the pretensions of the apartheid state.

In 1988, the African National Congress became the first political formation
in South Africa to commit itself firmly to the principles of a democratic order
based on a multi-party system, with the promise that a free South Africa shall
be a non-racial, non-sexist and unitary state. Our other major contribution was
our commitment to a Bill of Rights, a set of basic rights for all South
Africans, to be enforced by a non-racial, non-sexist, and representative
judiciary.

A movement without a vision would be a movement without moral foundation.
Such a vision, we feel, has been provided in the draft Bill of Rights we
published in November 1990. That Bill of Rights must be contextualised in the
discussion document on the Constitutional Principles and Structures for
democratic South Africa published in April, 1991.

These documents give concrete expression to the firm commitment of the
African National Congress to a moral and legal order which is antithetical to
racial oppression and exploitation. Our adherence to an alternative perspective
of government based on democratic, non-racial and non-sexist values has given
birth to an alternative vision for the future South Africa. More importantly, it
is that alternative that provided a basis for the negotiations for democratic
South Africa inaugurated in December 1991 at the Convention for a Democratic
South Africa whose work, we hope, will be completed by the multi-party forum
currently sitting in Kempton Park, outside Johannesburg, so that we can finally
exorcise apartheid by establishing a free society in South Africa.

We in the African National Congress have always held that, despite its abuse
over many decades, law can be liberatory a force in our society. We reject the
authoritarianism and abuse of the law reflected in the practice of the de Klerk
government. We subscribe rather to what is emerging as the most essential value
of contemporary society - the right of the individual to have a voice in
institutions that determine hers/his life. This means that we must promote
democracy at every level of society. The best and most effective means of
ensuring human rights and to promote the eradication of racism and sexism is to
enable the full and unqualified participation of all races, sexes and classes in
all aspects of society.

A democratic order must be based on the majority principle, especially in a
country where the vast majority have been systematically denied their rights.
While political and other discrete minorities rights must be safeguarded, we
must guard against proposals which will demobilise democracy under the guise of
power- sharing.

Our new order must therefore be based on constitutional democracy in which
regardless of race, gender, religion, political opinion or sexual orientation,
the law will provide for the equal protection of all. It will be an order in
which the government will be bound by a higher body of rules - an empire of laws
- and will not govern at its discretion. We reject an empire of man; we require
the rule of law, as opposed to what Aristotle called the "passion of men".

Democracy and human rights are inseparable. We cannot have the one without
the other. It is not be an easy road that our country is going to travel. The
end of apartheid will not guarantee the beginning of democracy. But until
apartheid is totally destroyed, there can be no democracy.

But we must warn against the language of rights being used to conceal
attempts to maintain, I n one form or another, the power, privileges or special
status of one racial group. The Bill of Rights cannot be a device to secure the
political or economic subordination of the majority or the minority. The one
lesson that struggle against racism has taught is that it must be consciously
combatted, and not discreetly and quietly nurtured.

For this, we will need a written Constitution that serves as the highest law
of the land; as a social compact guaranteeing the protection of the legal order.
South Africa has never had a proper Constitution. Ordinary laws, disguised as a
constitution, drafted by a racial minority which amended them at its whim, have
been imposed on our country. It must not be so in the future .

Why do we need a Bill of Rights?

Firstly, a Bill of Rights provides an important statement about the nature of
power relations in any country. Unlimited executive and legislative power -
which continues to pervade our society under racism and apartheid - cannot
co-exist comfortably with a commitment to individual political and civil
rights.

It is an historic irony that the movement of the oppressed and rightless has
made a categorical statement of our future intentions: that a future government
of a free South Africa must operate, for the first time in our history, under a
Constitution which will not only limit its powers I n relation to the individual
citizen but which will be enforced by a Constitutional Court which enjoys the
confidence of the people.

A democratic political order is not based solely on the accepted principle of
one-person-one vote. It must in addition, recognise the constitutional right of
dissent. It must also ensure that the power of the majority is constrained by
constitutional means. However, we must reject any suggestion to insert eccentric
and racially motivated proposals, which would impair the ability of a future
government to embark on the enormous task of reconstruction. A Bill of Rights
cannot be an instrument for the maintenance of the status quo . Though it will
be an instrument for stability it must facilitate change.

Secondly, apart from political rights, the challenge facing the new human
rights order in South Africa is respect for the cultural distinctiveness of our
people, and for cultural and political pluralism that adds richness to the human
experience. Language, culture and religion are important indicators of identity.
To recognise this is not to encourage division in our society but to produce a
legal order which is responsive to the needs of people.

On the other hand, it must be made quite clear that we cannot hope to build a
post-apartheid society on the basis of apartheid models. We reject totally the
assumption that the racial or ethic group is the basis of all social
organisation, and, especially, power relations in society.

This approach conceals its real purpose: the maintenance of a privileged
position for the dominant minority at the expense of the majority. The strength
of the ANC's proposals is that we underline the reality that human beings have
multiple lives and identities within and across group lines. The most effective
way of protecting minority rights is to protect individual rights. The
protection of individual rights in the political, economic, cultural and social
spheres ensures the freedom to participate and to associate, as they are
compatible with the like rights of others. In other words, the core principle of
human dignity implied in maximising freedom of choice, is the principle of
mutual, and reciprocal respect.

The key, therefore, to the protection of any minority is to put core civil
and political rights, as well as some cultural and economic rights beyond the
reach of temporary majorities, and to guarantee them as fundamental individual
rights.

The political order that we wish to establish therefore, will be one where
there are regular, open and free elections, based on one-person-one-vote,
without any educational or property qualifications at all levels of government -
central, regional and local. It will also have to be a social order which
respects completely the culture, language and religious rights of all sections
of our society and the democratic rights of the individual. Finally, the legal
order should assist, rather than impede, the awesome task of reconstruction and
rehabilitation of our battered society.

We must address the issues of poverty, want, deprivation and inequality in
accordance with international standards which recognise the indivisibility of
human rights. The right to vote, without food, shelter and health care will
create the appearance of equality and justice, while actual inequality is
entrenched. We do not want freedom without bread, nor do we want bread without
freedom. We must provide for all the fundamental rights and freedoms associated
with a democratic society.

We shall leave it to the judiciary to determine which rights are directly
enforceable at the instance of individuals. We shall be surprised if such rights
as the right to clean water, to minimum nutrition and to adult education cannot
be enforced by the courts. The condition prevailing on the morrow of democracy
pose a challenge to the legislatures, to public and state authorities to adopt
policies which will give priority to the rights of the poor and marginalised in
our society. A denial of such claims would be to accept the dehumanising effects
of deprivation and mass poverty as the lot of the majority of our people.

It is in this context that we will give careful attention to the need for
action to undo the legacy of apartheid and sexism. Affirmative action is not a
threat either to standards or to individuals. It is an internationally
recognised method of redressing past wrongs. To reject this mechanism is to
accept the status quo and to ensure that the fruits of war, colonialism, racism,
sexism and oppression continue to be nurtured in our society.

The experience of other countries has shown that the creative application of
a Bill of Rights can generate confidence in government and in the administration
of justice because it ensures that the rules of the democratic game are clearly
established and cannot be changed at the whim of a government. A codified Bill
of Rights will increase trust in a country blighted by insecurity and fear.

In addition to the substantive provision of a Bill of Rights, the African
National Congress has proposed that further mechanisms be created to develop and
increase confidence in the way rights are handled. These include a human rights
commission empowered to bring constitutional cases before the court and an
Ombud, a Defender of Citizens, with comprehensive powers.

The holding of fair elections goes to the heart of democracy. Elections
determine the holders of office and power. Those who hold such power can hardly
be the arbiters of how an election should be conducted. It is for this reason
that we have proposed that interim arrangements be instituted to supervise,
among other matters, the holding of a free and fair election for a Constituent
Assembly. Further we have proposed that subsequent elections be conducted, not
by the government of the day, but by an independent and impartial electoral
supervision commission.

We want the values underpinning a Bill of Rights to become part of the
culture of our people. For that reason it is important to recognise that the
authority of these values is not ultimately vested in the constitution as such,
nor in the power of the state, but rather in the people who at a certain point
in history commit themselves to a process under the rule of law and according to
a certain set of principles. For this reason the ANC believes that a Constituent
Assembly, convened on the basis of agreed fundamental principles associated with
democracy, must become the source of authority, to legitimate the process of the
adoption of a new and dynamic constitution.

I would like to say a word or two about the emerging debate in our country as
to the structure of government we should adopt. In a country where a racist
minority has made a virtue of over centralisation, bureaucracy and
impersonality, the form and content has to be democratic with participation and
accountability at all levels.

However, we have contended that the actual structure of government must be a
matter for the Constituent Assembly which shall draft the Constitution on the
basis of agreed principles of democracy, many of which have been negotiated over
the past two years and accepted by the major parties,

Whether there should be a federal or a unitary state is a matter therefore
for the Constituent Assembly. On the other hand, we have already accepted the
need for strong regions and stronger local government so that governance is
brought closer to the people. What we cannot accept is that economic and social
power is locked into the richest parts of the country. The result would be a
central government which has neither the authority nor the power to embark on
the reconstruction of the whole country. The equality principle must apply
throughout South Africa.

The deracialisation of South Africa, the development of all regions on an
equitable basis and the empowerment of the deprived are inevitable necessities
in a country where minority racial power has led to enormous inequalities and
disparities. The structure that best addresses these needs is the one we shall
adopt.

Finally, a word or two about the international aspects of the human rights
programme we have adopted. International human rights standards have provided
the legal and moral inspiration for

the struggle against apartheid. By characterising apartheid as a crime, by
protecting our combatants, by describing certain aspects of apartheid as
genocide, the international community have vindicated our struggle. As a result,
the apartheid regime has treated such developments with disdain and contempt.
South Africa has been cut off from full membership of the international
community through minority regime's refusal to adhere to the basic international
texts governing human rights.

Let me therefore say, unequivocally, that a democratic government, led by the
African National Congress, will regard as among its urgent tasks the
ratification of treaties dealing with children, workers, women, the environment
and a host of other instruments, so that South Africa can regain its patrimony
as a proud and respected member of the international community. At the same
time, we shall provide for all our people a floor of minimum rights of which can
be expanded as resources become available.

The challenge of a democratic constitution is what faces South Africa today.
It is a noble challenge to which all my sisters and brothers in South Africa, I
am certain, will rise.

Once again, thank you for this honour bestowed on me.