Let’s talk about the holes in the Freedom Charter by Gareth van Onselen (Rand Daily Mail), 18 March 2015

The sooner the ANC starts to accept that the charter has shortcomings, the sooner it will really be able to reclaim its virtues

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The thing about constitutions is they can be amended. True, this should never be done lightly, but as any democratic society progresses, so its moral compass becomes more precise. There develops a necessity for its foundational ethical principles to be reshaped and moulded to mirror its moral advancement. Were it otherwise, that society would be trapped in an age not just out of sync with the best human rights practice but unable to introspect and, therefore, to change. Betterment lies at the heart of modern civilisation; it is how freedom is advanced.

The Freedom Charter has been exempt from this process. It remains a critical document on the path to South African democracy. The general sentiments that define it ”” equality and justice ”” served as moral beacons for the ANC and the nature of the constitution that later become our definitive human rights doctrine.

Yet it is an unwieldy, incomplete collection of ideals, some prescient, others problematic. These shortcomings enjoy little meaningful discussion.

The charter remains defined by its omissions and contradictions as much as its virtues. But, because the ANC has so remorselessly insisted, on stage after stage, that it holds an almost divine status, it escapes much of the critical interrogation other, more formal, grand codes are regularly subjected to.

Shrouded in and protected by so much political correctness, it has come to be all things to all people ”” detached from meaningful scrutiny.

The result is that over time it has become weaker, not stronger. The lack of honesty about its full nature means it does not contribute to debate so much as stifle it.

All of this is to the ANC’s great political advantage. Because the Freedom Charter’s ultimate purpose was always a noble one, its general virtues can be used to overlook its specific vices and the majority party can pick and choose those elements with which it wishes to comply. In turn, critics can be painted as unpatriotic, even racist, should one imply a difficult relationship exists between the two. The irony is, were the ANC to take the Freedom Charter as seriously as it suggests the rest of South Africa should, it would not only contradict itself but also violate many of the rights contained in the constitution.

Ahead of its 103rd anniversary, ANC secretary-general Gwede Mantashe says his party will aim to reclaim the charter, recently a favourite reference for the EFF. "This is the year of the Freedom Charter," he says. "It is the 60th anniversary of the Freedom Charter that is the emphasis because every Jack and Jill claims to be the custodian of the Freedom Charter these days."

And so it was that President Jacob Zuma’s January 8 statement was broken up along the charter’s primary definitive themes: "SA belongs to all who live in it", "the people shall govern", "all shall be equal before the law", and so on. But on the charter’s more problematic sentiments the president was silent.

For example, it states: "All national groups shall be protected by law against insults to their ”¦ national pride." In the wake of the Charlie Hedbo attack, much of the world has come out in defence of the right to insult, to criticise and to ridicule as an essential component of the right to freedom of expression. One can debate the wisdom, politeness, or even civility of insulting ”” and gratuitously insulting at that ”” but of the right to insult there can be no debate. Everyone is entitled to it. Certainly the constitution protects it.

Elsewhere, the charter states that "the banks ”¦ shall be transferred to the ownership of the people as a whole". The idea of nationalisation is a favourite rhetorical device as the country’s taste for all things demagogic seems to grow. Nevertheless, were the government actually to set about trying to nationalise the country’s banks it would precipitate an economic catastrophe and violate much in the constitution.

There are other problems with the charter from a constitutional perspective.

"All other industry and trade shall be controlled to assist the wellbeing of the people," it states. Yet it proposes no limit to that control, a doorway through which authoritarianism will gladly step.

"The aim of education shall be to teach the youth to love their people and their culture," it states. Much like the right to insult, the state has no duty to advocate culture, let alone love. These are the exclusive domain of the private individual. The phrase the charter is looking for is "human rights". Even then, the state can only promote and protect them.

Elsewhere, the charter’s writing and conception seems trapped in time: "The state shall help the peasants with implements, seed, tractors and dams to save the soil and assist the tillers," it states.

"To save the soil"? It is a phrase that neither resonates nor makes any sense.

And there are significant omissions. Quite why the charter makes no reference to the establishment of a bill of human rights or constitution is difficult to understand, for surely these are the basis of any just society.

The ANC’s expediency results in contradiction too. The charter states that, "the colour bar" in sport "shall be abolished". Sports Minister Fikile Mbalula made much political hay last year in advocating for a rigid new set of quotas for all national sports teams. He even threatened to withdraw national accreditation should the relevant administrations fail to comply. Enoch Godongwana, the ANC’s transformation chairman, said in defence of the ANC’s newfound appreciation for quotas, that "(apartheid architect Hendrik) Verwoerd used the quota system, therefore we should too! We unashamedly say we will use quotas”.

The self-same immoral system, indeed its principle figure, against which the Freedom Charter set itself, is now used by the ANC to justify some of its policy decisions. War is peace, as George Orwell says.

And that contradiction extends much further than sport. The South African Police Service (SAPS) has implemented an even more rigid quota system in regulating its employment practices. It calls for strict demographic representivity, going so far as to impose uniformly national demographics, entirely out of kilter with provinces such as the Western Cape, on the institution.

The Freedom Charter states: "The police force and army shall be open to all on an equal basis."

Many of these problems, some of the charter’s, some the ANC’s, can be explained away by the context in which the document was produced. It was, in essence, an attempt to define a just and moral alternative to apartheid and in doing so to restore pride and equality to millions deprived of such basic rights. For that it deserves much praise. But it was a rough sketch and, from a constitutional perspective, it missed the mark as often as it hit it.

The price one pays for elevating something to the level of the divine and, indeed, to the point where 60 years after its creation it is still presented as infallible, is that all you end up doing is undermining its legitimacy.

The greatest modern texts, from the American constitution to the Universal Declaration of Human Rights, have all been amended and adapted. They are living documents. A dead document is one sealed in a myopic orthodoxy.

The Freedom Charter is not policy so it has no public body to amend it. But it lives on in debate and discussion. The sooner the ANC starts to accept that it suffers a number of shortcomings, and to differentiate its strengths from its weaknesses, the sooner it will really be able to reclaim its virtues.

In turn, the party’s selective use of the charter will stop being seen as expedient and, rather, as grounded in a more universal commitment to human rights ”” a base every South African can relate to and embrace.

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