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I’m here in SL to inspire and not direct on how to craft a just constitution
View(s):A political prisoner at 15 and later rising in rank to become a Judge of the Constitutional Court and the Deputy Chief Justice of South Africa, Dikgang Ernest Moseneke helped draft South Africa’s post-apartheid Constitution and was also the executor of the Nelson Mandela Estate. Here he talks to Randima Attygalle
Dikgang Ernest Moseneke. Pic by Amila Gamage
“You my children are not chickens, you are eagles, you must take off and fly high. Eagles must fly into the sun without much bother because they are built for hard things and for high things,” reverberate the credos of young Dikgang Ernest Moseneke’s Primary School teacher.
It was a bugle call for all youngsters in Pretoria to defy the ‘Bantu Education’ prevailing in South Africa which promoted racially segregated learning and a ‘dull form of slavery’. Knowing little that he would be put behind bars at 15 and would later rise up in ranks to become a Judge of the Constitutional Court and the Deputy Chief Justice of South Africa, and esteemed as one of the most ‘independent-minded’ and ‘imaginative jurists’, young Moseneke nevertheless took his teacher’s urging to his heart. “The fact that I’m an eagle gave me energy and kept me going, reminding me constantly that eagles disappear into the firmament never to be seen again,” reflected Judge Moseneke, speaking to the Sunday Times during his one-week visit here.
His ‘salt-of-the earth people with a deep sense of their wholeness as human beings’ whom he speaks of in his memoir My Own Liberator had enriched his mettle, says the distinguished jurist. Born to parents who initially met as young teachers, little Dikgang Moseneke would see his maternal grandpa off to work at 2 p.m. each morning and would ‘stand up on his toes’ to lock the door after him.
An ‘illiterate’ man from Zulu Land who could not relate to the printed word of a newspaper, his granddad still continues to mesmerize him. How he could become a gourmet chef of a Pretorian hotel patronized by visiting diplomats and familiarize himself with all those ‘sophisticated ingredients’ still baffles Moseneke. “Those were not the times of electrical boilers, so my grandpa had to stoke the fire for important people to have their hot bread,” he reminisces. His Kimberley-raised grandmother, though illiterate, along with his grandfather, gifted him the ‘gene of hard work’ and humility he says, adding nostalgically: “they were honest, hard-working people with no airs.”
It was this very spirit of character passed down to him by his people which kept the hopes of the 15-year-old political prisoner on Robben Island flaming. “I knew that ten years would run out unless something terrible happens to me,” he recollects. Despite being put on trial without legal representation, the brutalities meted out during his ten-year prison term and being ridiculed for being a ‘brainless stupid man’, adolescent Moseneke’s sense of justice drove him to contest the white authorities with a 80-day hunger strike joined in by his fellow prison mates urging for opportunities to read for a degree.
It is the young who would first revolt in most societies, and he was ‘one of those lucky ones to have become prominent’ asserts Judge Moseneke with a smile. He went on to defend such youthful rebels later on in his capacity as an attorney. The prison officials would at first kick out his reading material sent to him by post, they would say ‘no, no’ to Karl Marx but nothing could hold back Moseneke earning a degree in English and Political Science from the University of South Africa, from which he went on to earn his Law degree in later years. “You cry, cry and cry and then stop crying eventually,” is how he describes his prison life for both himself and his family. He swells with pride remembering how his father saw him rising to make a name in South Africa, and his 94-year-old mother who is still living was privy to the high seats he held.
Being thrown into the same space as that of other leaders of the freedom struggle, including the visionary leader Mandela whom he befriended during this time, Moseneke’s imagination was fired. It is this very imagination which was translated into South Africa’s constitution, heralded as one of the most progressive and ‘living’ documents upholding inclusiveness and a large corpus of fundamental rights, some of the landmark judgments he delivered on separation of powers, corruption busting mechanism and the supremacy of the legislature being threatened, most of which had been implemented into the South African policy today. His contribution to South Africa’s property law is also impressive. ‘Imaginative jurisprudence’, as the celebrated legal mind explains, is transforming the technicality of law to spaces where just outcomes are possible.
A just society is one which creates space for citizens to accomplish their full potential, one that transcends colour, creed and gender, observes Moseneke, who maintains that ‘considerable time’ and ‘revolutionary ideas’ should be poured into realizing a ‘living’ constitution which would champion inclusiveness and the will of the common people. “This is what I want to share with Sri Lankans, our own experience of realizing a constitution which is part of people’s everyday lives. How we transformed the nation from being completely oppressed to completely liberated.” The solution, however, must be ‘a Sri Lankan one’ which should be realized by its people, elucidates the judge. “I’m not here to direct what Sri Lanka should do, and should not do but to be inspired by our experience,” reiterates the judge who cites public media engagement for creating constitutional literacy at all levels commencing from the class room, enabling public access to televised major judgments of the Constitutional Court and parliamentary debates as some of the major South African tools in this regard. “One reason why our flag is so colourful is because we were inspired by all the hues children, adults and professionals brought in when we held competitions to decide on one,” says Mosenke with a chuckle.
The Sri Lankan dialogue was “quite a learning curve and wonderful space for engagement,” says the jurist who was engaged in most forums where active discussion about the constitutional process takes place including the Parliament. “It has been rewarding to see a sharp exchange of ideas about inclusion, fundamental rights and the role of courts,” he says. A lot more however needs to be done in terms of people engagement, he notes. “This should be through layman’s language and not in constitutional terms,” reflects Moseneke who says that simplicity of expression is the key. A constitution, he says, should not be delivered “thunderously as a mountain or with big speeches” but essentially made possible of ‘bed time reading.’
The jurist also urges to take a cue from the South African experience of creating wider awareness of fundamental rights, which is integrated into mainstream media. “Before each news bulletin, people can hear what their rights are,” notes Moseneke who also cites checks and balances and streamlined procedures ensuring the independence of the judiciary and press freedom. The right to information according to him is a feasible exercise in South Africa where the state should show good cause in withholding any information. Apart from the press, the tool is also exercised by the public through civil society organizations, he notes. In terms of the ‘cracks’ which seem to be appearing across the Rainbow Nation, Judge Moseneke asserts: “these emerging cracks indeed are a big threat to us, cracks in terms of socio-economic perspectives. We need to use all tools we have, including the electoral power, in sealing them.”
Judge Moseneke also made history as the Executor of President Mandela’s last will, his association with the iconic leader dating back to the time they spent on Robben Island prison. “You can only say yes to such a great man,” says the smiling jurist, adding that the task was a challenging one, given its “complicated family affair” with three spouses in the picture. “We are now at the end of the last process of distributing his assets,” notes Moseneke who calls himself a fortunate man to have associated with the celebrated leader on close terms. Having been invited by Mandela to join the team of constitutional jurists to write the country’s constitution, Moseneke was also appointed the Deputy Chair of the first democratic Electoral Commission of South Africa. “I have never run elections before, but President Mandela had utmost trust in me.”
Together with wife Kabo Moseneke, Judge Moseneke is a father of three and a grandpa who continues to learn from his young grandchildren ‘lessons of natural justice’ as he laughingly admits. An eagle who continues to set an example by ‘flying high to the sun’ he is a man radiating a ‘deep sense of wholeness’ as a human being as he rightfully admits: “my greatest strength is my will to do good”.