Mark Oppenheimer on defending the Constitution

South Africa's Constitution is widely lauded, but how strong is constitutional democracy and the rule of law in SA?  

In this episode of Solutions With David Ansara, I speak with Advocate Mark Oppenheimer of the Johannesburg Bar about defending South Africa's Constitution.   

We discuss Mark's new podcast, Constitutional Landmarks, which explores the most significant judgements handed down by the ConCourt since its inception, including the Nkandla judgement against former president Jacob Zuma, the abolition of the death penalty, the Truth and Reconciliation Commission (TRC), gay marriage, and access to HIV/AIDS treatment.

Mark and I discuss the origins of the Constitution, which is the product of a negotiated political settlement between the outgoing Apartheid regime and the incoming ANC government. As a result, the final document became something of a patchwork of compromises and political agreements.

Mark points out that one of the founding values of the Constitution is non-racialism: "The original meaning of the term is that you don't allocate burdens and benefits on the basis of race, he says. "People ought to be judged on the content of their character and not the colour of their skin."  

However, Mark notes that the principle of non-racialism is often contradicted by government policy and social behaviour. He highlights the recent elections for the Legal Practitioners' Council, the body that runs his profession, where certain seats were allocated on the grounds of race. This has resulted in black female candidates being removed from their seats for being 'overly-represented'. "The Constitution promises certain things, but as a society we still need to work quite hard to ensure that those are provided," Mark says.

We also discuss the notion of redress for past wrongs, and the folly of the proposed amendments to section 25 of the Constitution (the Property Rights Clause), as well as whether the Truth and Reconciliation Commission achieved a just outcome for victims of gross human rights violations.  

How do we as ordinary citizens ensure that we uphold the values of the Constitution, I ask? 

Protecting and upholding constitutional principles requires active citizens bringing cases before the Constitutional Court, Mark says. NGOs and other interested parties can do this, but litigation is expensive. Crowdfunding initiatives such as those run by organisations like the Institute of Race Relations and Afriforum can do a lot to shape our constitutional framework, he says.  

Mark notes that a Constitution is not simply a piece of paper. "It's not only about rights, it's a culture," he says. This requires us to hold government to account and ensure that our rights are protected. "The price of freedom is constant vigilance," he says. "If you do nothing, then tyranny will prevail."

TIMESTAMPS  

(00:00) Intro

(00:41) Mark Oppenheimer on his new podcast, 'Constitutional Landmarks'

(03:11) Mark Oppenheimer on the history of the South African Constitution

(09:08) Mark Oppenheimer on equality  

(11:50) Mark Oppenheimer on the supremacy of the Constitution

(15:20) Mark Oppenheimer on strengthening the rule of law

(18:09) Mark Oppenheimer on Expropriation Without Compensation

(22:05) Mark Oppenheimer on the Truth and Reconciliation Commission

(32:25) Mark Oppenheimer on 'Transformania'

(36:07) Mark Oppenheimer on the Judicial Services Commission

(38:28) Mark Oppenheimer on defending the constitution

(40:19) Mark Oppenheimer on his appearances before the Constitutional Court

(43:29) Conclusion

RESOURCES

SUBSCRIBE to 'Constitutional Landmarks' on YouTube: https://www.youtube.com/c/ConstitutionalLandmarks 

LISTEN on your preferred podcast app: https://anchor.fm/constitutional-landmarks