Mandela Swears in First Constitutional CourtBy Paul Taylor
Washington Post Foreign Service
Wednesday, February 15, 1995; Page A13
JOHANNESBURG, FEB. 14 -- "The last time I was in court," President Nelson Mandela said today with a historical flourish that seemed fitting, "was to hear whether or not I was going to be sentenced to death."
That was 31 years ago, and one member of his legal team back then was a rising young attorney named Arthur Chaskalson.
Mandela returned to the halls of justice today to preside over the inauguration of South Africa's first Constitutional Court, another milestone on this country's difficult journey toward democracy and a culture of human rights.
Once again, he had Chaskalson at his side -- this time, as the man he had appointed presiding judge of the new 11-member court.
Chaskalson lost the 1964 case known as the Rivonia trial, but not in the worst way. Mandela and seven codefendants were spared execution. They were sentenced to life in prison, a verdict which changed the course of history. The struggle against the apartheid system of racial separation drew strength from Mandela's imprisonment, and Mandela outlived his jail term to become president of a free South Africa.
Today's swearing-in ceremony, held in a makeshift courtroom in a building originally intended to house a hospital, was full of poignant memories for many of those present.
Perhaps the most gripping moment came when human rights lawyer and anti-apartheid activist Albie Sachs rose to take the oath as a new judge. Beneath a specially tailored deep green robe, he raised the stump of his right arm -- the arm blown off in a car bomb attack in 1988 almost certainly carried out by security agents of the apartheid-era government. The stump quivered a bit; Sachs's voice was firm.
"Law and justice in this society are finally coming together," he said later, "after conflicting so violently for so many years."
The court was created as a result of a constitution written in 1993 after two years of negotiations between the outgoing white-minority government and the incoming black liberation movement.
Until now, this country has always had a system of government in which parliamentary law was supreme. In apartheid South Africa as in Nazi Germany, atrocities were committed under the cloak of law.
With the creation of this court, South Africa joins most of the rest of the world's democracies with a system of checks and balances in which the constitution -- as interpreted by a constitutional court -- is sovereign.
"For the first time," said a beaming Chaskalson, "the constitution trumps Parliament."
There is irony in the timing of this change. At the very moment South Africa has an executive and legislature elected for the first time by the newly enfranchised black masses, these branches are subject to the review of an appointed court.
As it happens, seven of the 11 judges are white. However, all have records of opposing apartheid, and to the extent that there has been mild criticism of Mandela's appointments, it is that too many are too close to Mandela's African National Congress. "Let's judge the tree by its fruit," said Sachs, a former ANC executive committee member. "This is a group with great integrity."
The establishment of the court and the incorporation of a Bill of Rights in the 1993 constitution were meant to assure South Africa's white minority that it will enjoy fundamental freedoms of speech, assembly, press and religion in an era of black-majority rule. Whites never saw the need to entrench such fundamental rights when they were in power.
But no one present here today seemed to mind. "One object of the liberation struggle was to secure a system of government based on enduring principles and values, not on transient attitudes, the way parliamentary majorities are," said Frene Ginwala, speaker of the National Assembly.
"I think the people of South Africa are happy to have a system of government that will not be subject to the tyranny of the majority," agreed Pius Nkonzo Langa, one of four nonwhites on the court.
There is an unusual relationship at the moment between the court and the constitution. Even as the judges start interpreting the 1993 document, a newly elected Constitutional Assembly already has begun to rewrite it. But the assembly must adhere to 34 "constitutional principles" contained in the 1993 document, covering such matters as federalism, separation of powers and fundamental rights. It will be up to the court to decide whether the assembly has fulfilled its mandate.
The new court already has fulfilled one new South African imperative: diversity. Until a few years ago, South Africa had no black judges. Today's swearing-in ceremony had to be conducted in five languages. Six judges spoke in English, one in Afrikaans, one in both, one in Zulu, one in Sotho and one in Xhosa. There are three blacks on the court and one Indian; three justices are women.
The court will hear its first case Wednesday. At issue is whether South Africa's death penalty violates a broadly worded "right to life" clause in the 1993 constitution. Observers expect the court to outlaw the death penalty.
But the court's great challenge has less to do with hearing individual cases, no matter how momentous, and more with conferring a sense of legitimacy onto a criminal justice system that, nearly a year after South Africa's great political transformation, is still starved for respect among ordinary citizens.
South Africa continues to have one of the highest rates of violent crime in the world. Millions of blacks still refuse to cooperate with police and prosecutors; they mete out their own street justice when they deem it appropriate.
"Ultimately a court cannot be much better than the society it serves," said Judge Johann Kriegler. "The future of that society will be determined less by the quality of its bench and more by the sense of justice in its civil society."
© Copyright 1995 The Washington Post Company