Why we need to make it easier for people to understand the importance of the constitution

Between full time work and organising events, we don’t often get chance to articulate our thoughts on why #HackTheConstitution is really important. Fortunately, the ConCourt does that for us: it’s been in the spotlight over the last few weeks for its role in trying to sort out the mess around social grants and the question of who is going to be making sure recipients get their benefits in two weeks’ time, two months’ time and two years’ time. It shouldn’t even be a ConCourt matter, but that’s where the legal buck stops and creating a tool which not only celebrates but opens up our constitutional process seems to be a sensible way of doing our bit to protect it. 

Here’s a piece by associate professor of public law at UCT, Richard Calland, that was originally published under a Creative Commons licence at The Conversation. It’s possibly the best summary of the current situation and the threat to the constitution you’ll read today. 

South Africa’s Constitution, greatly lauded around the world and the product of Nelson Mandela’s democratic transition of the mid-1990s, is under attack. It’s being blamed in some quarters for the slow pace of socio-economic transformation in Africa’s biggest economy.

As respected commentator Barney Mthombothi provocatively asked:

World’s best constitution, you say? Pity people can’t eat it …

Not even 48 hours later, and with exquisite timing, the Constitutional Court provided at least one of the many available answers when it demanded that the Minister for Social Development, Bathabile Dlamini, and one of her most senior officials, file affidavits by 3pm that very afternoon. The court instructed them to explain why they had failed to respect deadlines it had set in a case concerning welfare grants to around 17 million of the country’s poorest people.

Later that day, at exactly 11 minutes past the appointed hour, attorneys representing the minister were seen running into the court. The powerful symbolism of representatives of the executive branch of government scurrying to respect the highest court of the land and, thereby, the rule of law should not be ignored. It provides ample evidence that judicial independence is a strong suit in an otherwise rapidly-depreciating hand.

The grant payments case

The details of the welfare payments concern the governance of the welfare state that South Africa’s ruling African National Congress (ANC) has built up over the past two decades. It’s a remarkable achievement, and one that has helped secure the ANC’s electoral prowess in winning five national elections in a row since 1994 never with less than 62% of the popular vote.

With an unemployment rate (under the wider definition) of 35% and sluggish economic growth, the social security safety net is vital for preserving social stability and protecting a large segment of the population from destitution.

Yet it has been thrown into jeopardy by the apparent pig-headedness of a minister who is politically protected because of her position as president of the ANC Women’s League. The league is not only an ardent and loyal supporter of South Africa’s beleaguered president but an influential part of the electoral college that will decide who will succeed Jacob Zuma in December.

The government agency responsible for social security payments – the South African Social Security (SASSA) – is a part of Dlamini’s department. Several years ago it contracted – unlawfully said the Constitutional Court in 2013 – the task of administering the welfare payments to a private company, Cash Paymaster Services (CPS). The ruling prompted inevitable and understandable suspicion that corruption lies behind the crisis.

The Constitutional Court had ordered that the contract should be re-tendered in line with public finance management law by 1 April 2017. For almost a year Dlamini dragged her feet, apparently determined to manufacture a crisis that would give the government – and the court – no choice but accept an extension of the CPS contract or risk millions of welfare beneficiaries not getting their social security payments on time.

This week the Constitutional Court has once again being asked to play a supervisory role, in ensuring that the government does what it is required to do in service of its people and in accordance with its constitutional obligations. It ruled that the CPS contract be extended for 12 months, but with strict conditions.

The court also said Dlamini had until March 31 to show why she should not pay the costs of the application from her own pocket.

This is just one of a legion of cases in which the Court has stepped in to protect vulnerable people and to perform what former deputy chief Justice Dikgang Moseneke calls its “transformative role”.

The Constitutional Court and social justice

In the early 2000s the court ended the Mbeki administration’s irrational approach to HIV-AIDS treatment. The ruling is regarded as an extraordinary, path-breaking case study in how to advance socioeconomic justice through law by legal academics around the world.

In the Grootboom case the court found that the government’s lack of emergency shelter programme for homeless people caught in the face of a nasty Cape winter was also unreasonable. Since then every sphere of government has a “Grootboom line item” in its annual budget. Hundreds of thousands of vulnerable people have been given safe haven as a result.

Through various cases the country’s legal order and its statute book has been rewritten over the past 20 years. It is unrecognisable from the dark days of apartheid.

Lawson Naidoo, the director of the Council for the Advancement of the South African Constitution argues that South Africa’s constitution is at the heart of all this change because it sets the parameters and guides the path towards a better, more equal, as well as free and open society.

Why, then, is South Africa’s constitution, which turned 21 last month, coming under attack and who is it that is leading the charge?

What lies behind the attacks

The two parts of the question are important because they are interdependent.

Some members of the student protest movement have asserted that the constitution is a neo-colonial construct imposed on South Africa. Other nationalists, such as Mzwanele Jimmy Manyi, a prolific defender of Zuma and member of the leadership of the Black Business Council, have attacked the Constitution for being “anti-transformation”.

The Constitutional settlement of the mid-1990s is widely recognised as being the product of political struggle but also political compromise.

For some, the implication here is that the “compromise” has tied the hands of the democratic post-1994 government, constraining it from pursuing a more radical approach to transforming society and the economy.

The first difficulty with this contention is that the final constitution was written after the founding democratic election in 1994 by a democratically elected Constitutional Assembly in the following two years.

The second is that this constitution-writing process was accompanied by a remarkably extensive and expensive exercise in public participation. Because of this the legitimacy of the constitution itself was, until recently, not seriously questioned.

So the test for any critic of the constitution is surely this: how exactly has the constitution prevented the government from doing more? And precisely which provision has been a constraint and why?

Take land reform, an increasingly important as well as emotive part of the political landscape in South Africa. Constitutional critics regularly insist that section 25 of the constitution imposes a “willing buyer, willing seller” obligation.

In fact, it does no such thing. On the contrary, it provides a framework for government-led expropriation for a public purpose or in the public interest, subject to compensation determined on a “just and equitable basis”.

Section 25 has also provided important protection for tenants and those living in informal settlements against harsh treatment or arbitrary eviction by landlords.

Victim of the zeitgeist

It’s important to note that, in general, most of the attacks on the constitution come from the populist, nationalist rightwing faction of the ANC, not from progressive forces inside and outside the ruling party. For those who are intent on capturing the state as quickly as possible, the constitution simply gets in the way. For them it is an inconvenience that inhibits the prosecution of their own venal interests, not a strategic asset for the country.

In other words, the Constitution is an unavoidable victim of the political zeitgeist. It’s therefore potentially collateral damage to vicious power struggles currently consuming both the ANC and the government.

However, this analysis is not to deny that the Constitution is, and should be, a site of authentic contestation. “Did we talk enough about land?” Moseneke asked law students at the University of Cape Town last week. “No. But we reached a starting point compromise in section 25. We can’t have millions of South Africans as unlawful occupiers of the land of their birth.”

A constitution should have a dynamic quality; it is not a tablet of stone. So serious argument and debate about amendment is appropriate and necessary to sustain its legitimacy and ward of populist scapegoating.

Of course you can’t eat a constitution. But, as time and again South Africa’s constitution has proved -– not least this week with the SASSA judgment – it can help ensure that the poorest citizens can eat. Moreover, and perhaps even more importantly, it can ensure that their government does not lose sight of their everyday needs and its responsibility to serve them.

Putting the law on the line

A big thanks to Greg Kempe of Code4SA who gave up his Tuesday night last week to talk #HackTheConstitution through some key points about putting laws online, who’s done what already and what the big needs are for the future.

Kempe is the creator of openbyelaws.co.za, a project he’s been working on for some time to liberate municipal byelaws from dusty vaults (or worse, scanned PDFs) and put them online in an accessible format.

To make OpenByeLaws work, Kempe built the Indigo platform (with funding from the Indigo Foundation in the UK). Indigo formats legal documents into flawless HTML, and is exactly what we need to use for HackTheConstitution.

Indigo is based on the international Akomo Ntosi framework for publishing legal documents, which has been embraced across Africa and further afield. Because it uses a standard XML markup for things like chapter and clause headings, we can use it to anchor annotations around the text of the Constitution.

With the bulk of the HTML generation and formatting taken care of courtesy of the open source Indigo platform, we can concentrate on the annotation engine and design, which can ultimate feedback into the Indigo project itself. Getting the Constitution into Indigo should be more or less automated, with some manual touching up on the XML as required.

The presentation Greg gave is here, for those who couldn’t make it.

Greg also pointed us in the direction of other groups who have created similar projects that we could possibly collaborate with, particularly the Indian group Nyaaya which has made great progress with legislation there. We’re going look at how they’ve added annotations, and see if we can make the functions a little more dynamic.

On the development side, we got great interest from a committed group of coders who are investigating hypothes.is and annotate.js as ways to build the annotation engine. The project is starting to take shape.

#HackTheConstitution: Where we are

As we go in to 2017 and start the work of organising volunteers and meetups for the phase of the project, it might be useful to recap on where we are for those who’ve been involved in the past and aren’t sure what’s going on, and those who want to join us in our mission to blow open African legal documents for discussion.

In the run-up to the hackathon in August, we had a very basic prototype of the web application up and running. This was based on the text of the constitution from myconstitution.co.za, and the Rap Genius annotation engine, which is very easy to implement.

What became clear as we worked through ideas at the hackathon was that we needed a much more sophisticated platform if we were going to build anything of real value and long term use. The Genius annotations worked, but they didn’t give us much of the functionality we realised users would need.

In mapping out user journeys to the site, we realised that we needed a system that was easily searchable for both the text and the annotated detail, presented search results in a coherent way, and – with a lot of user generated content – could be moderated properly. We need to be able to flag annotations as legally valid interpretations of the law, for example, or history pieces or stories that our user have uploaded. We need to be able to weight them if there are multiple annotations for a single section – and sort them into useful groupings for teachers, journalists, activists, etc.

Here’s some of the ways we came to those conclusions.

Which obviously makes little sense right now, and there were lots more of those. Scott from ENCA made a feature vid about the hackathon.

All of which meant that we went back to square one after the hackathon, with a lot of interest but nothing solid to show. The rest of the year was mostly spend in design thinking workshops, plotting out how a web app – which has to be mobile-first – can elegantly deal with all the demands we want to put on it.

They produced stuff like this:

And crazy sketches that involve animated tumblers and things like this.

But the big breakthrough was that we had to control where the annotations were placed. It can’t be a scattergun, select what you like system of the kind Genius and a lot of websites use. What we need is the ability to layer information over specific clauses in the Constitution, not individual words. Apart from anything else, that means the language that a user selects to read the Constitution in won’t matter – while words move round and change in impossible-to-track ways when translated, Section 9 clause 4 is always Section 9, Clause 4.

In some ways, this makes the project easier – it takes a lot of the complexity out of deciding where annotations go. In other ways, it makes it a bit harder – we’re not going to find an off-the-shelf system like Genius.com to do it for us.

The real beauty, however, is that if we can develop a platform that does what we want around the Constitution, it will be trivial to use the same system to annotate other laws and create similar reference documents or discussion platforms.

Our next step, before we finalise a technical brief for the project, is to investigate the Akomo Ntoso standard for African legislation. If we can build to be compatible with that, it opens up a lot of opportunities for similarly-minded folk around the continent to build on our work.

Right now, progress is slowed by the fact that this is an entirely volunteer led project, and we need a lot of help. If you want to get involved, please drop us line here.

#HackTheConstitution: An FAQ

1. What inspired the development of HackTheConstitution?

HackTheConstution came about as a result of a couple of conversations earlier in the year about the work of the ConCourt. In the space of a few months, it passed judgements on housing issues, the Vodacom Please Call Me case and Thuli Madonsela’s Nkandla report. Everyone from the poorest citizens to the president of the country was judged by the Court, and while news headlines were full of its work, it dawned on us that few people – including the journalists writing about it – really understood its mandate. Why was Please Call Me a Constitutional issue, for example? More worryingly, it also became apparent that a lot of people would like to change the Constitution if they could – President Zuma spoke in the house of elders about legal mechanisms like the Constitution not being “African”, and opposition parties in the run up to the local elections also talked about changing the Constitution as part of their electioneering propoganda.

It all seemed curious to us, so we looked into a bit more.

2.       Why are you doing this work? What benefit does it have for South Africans?

What we found was this: South Africa has a model Constitution which is held up by the rest of the world as an exemplary legal document, one of the best of its kind. After the end of Aparthied, the authors of the Constitution wanted to create a document that guaranteed the horrors of that period could not ever happen again. It is thorough, it is not overly dense in terms of legal language and it absolutely guarantees that everyone is entitled to the same rights and considerations before the law. It has allowed South Africa to be world leaders in fields of equality (like gay marriage) and is used almost daily to win rights for those who need its protection most.

Yet many in the corridors of power constantly seek to undermine it, to suggest that it was created in this way because of the end of Apartheid, and is now too limiting and has served its purpose. That it is “of its time” and that time has passed because other challenges now face the country.

Here’s the thing: as the author and online activist Corey Doctorow points out, Constitutions are almost always a “Ulysses pact”. They’re written at a time when countries are emerging from a dark period of war, revolution or other birthing mechanism that creates nation states. They always seek to prevent the past from happening again, and that’s why we should think very carefully about changing them.

What we realised was that while South Africans celebrated the new Constitution when it was written, and it became an integral part of the “Rainbow Nation” story, the sense of national pride it helped to instill was dwindling. And that’s because – unlike in the United States, for example – the Constitution isn’t much read by people any more. It’s not taught in schools, it’s not a part of citizenship tests and there’s a general lack of understanding that it really is the ultimate law of the land from which all others follow.

Part of the issue is that there are no tools available for educating people about the Constitution. There’s a huge gap in terms of resources, and while many good ideas have been put forward to fill it, few have really succeeded well.

3.       What are the far reaching/long term goals of the project?

We have several goals. The most basic one is that we want to create a resource where you can quickly search the text of the Constitution and find helpful annotations that explain what jargon like “non-derogable” means, or an explanation of how the SABC’s charter and the role of its CEO flows from its reference in the Constitution (is it Constitutional to censor the news?). By including bits of case law and Constitutional Court judgements, we think we’ll build a resource that can be used in schools or by journalists looking for background information on the role of the Constitution and its meaning.

There have been other attempts to do this, but the problem is that they aren’t very interesting or engaging. So we also want to use the same platform to make the Constitution engaging again, and a source of pride. So we’ll be opening up the annotations for anyone to upload their stories relating to the Constitution: if your community has won housing or access to water, for example, we want photos, videos and text about it. We think this will inspire others to do the same and help to bring some under-reported stories to the fore too.

We also want to make it work in all 11 languages. And eventually we hope to use the same platform to open up inforrmation and discussion about other laws or proposed laws too. How great would it be to have a platform like this to discuss the Cybercrimes Bill, or the Film & Publications Board Amendment Bill?

4.       What other projects have inspired you to do this, both locally and abroad?

We’ve worked with people from the ConCourt and the #IAmConstitution Campaign, who have inspired us to keep going. The work of Code4Africa and Code4SouthAfrica is also tremendously inspiring. Overseas, we’ve been looking at how organisations like MySociety use online tools to democratise information, and the Open Government Partnership too. Here in South Africa the Parliamentary Monitoring Group and OpenByelaws have also provided insight and vision, and especially Arthur Atwell’s MyConstitution.co.za project, which put the text of the Constitution online for the first time in some languages.

5.       How can South Africans participate in initiatives like this?

There’s loads of groups which encourage “tech for good” if you know where to find them. Your local Hacks/Hackers chapter is a good place to start, and Code4SA has some great individuals working for it too. Look out for hackathons run by government departments too – they’re all really keen to get new ideas and innovations up and running by bringing together lots of people with different skills to think about how to tackle local problems with technology.

We’re going to hack South Africa’s constitution. Here’s why…

Just over 20 years ago, on the 8th May 1996, The Constitution of the Republic of South Africa was approved by the national parliament and handed over to the Constitutional Court. It would be almost another year of amends and process until it was formally adopted, but the date remains significant nonetheless.

Now, Parliament is considering major changes and has opened up a channel for members of the public to have their say on what they think needs to be reworded.

We all know why the Constitution has been under the spotlight lately: on 31st March President Jacob Zuma was found to have failed to uphold, defend and respect the document that forms the supreme law of our land by not complying with the findings of Public Protector Thuli Madonsela over the Nkandla affair.

The ConCourt has also been the spotlight recently for its work in shutting down a bursary offered to female university students providing they pass regular virginity tests. Opponents of the new editorial policies put in place by the public broadcaster, the SABC, which prevent its journalists showing some scenes of violent protest, may well end up forcing the organisation to justify its stance in front of the ConCourt.

But Constitutional Law is a notoriously difficult thing to fully understand and follow. Explain, if you will, the ConCourt’s most recent decision to award Nkosana Makate the rights to a mobile phone service Vodacom developed on his idea. No single national news outlet (as far as we can tell) covered the judgement in detail — probably because it largely hinged on an obscure distinction between “ostensible authority” and “estoppel” (What’s that? — Ed).

The South African Constitution isn’t overly complex, but it is lengthy and it is highly prescriptive. Where the US Constitution famously fits on a single page, South Africa’s stretches to nearly 200 leaves laying down a Bill of Rights, the basics of parliamentary procedure and the mechanisms of oversight that serve to bind politicians, citizens, civil servants, employers and — yes — the SABC to its covenant.

Almost every South African institution, including the Reserve Bank, exists with a primary mandate laid out in the Constitution.

As Constitutions go, it’s one of the finest in the world. Written by a generation of politicians who emerged from Apartheid regime who wanted to enshrine equality and fair treatment before the law for all, the reason for its length and prescriptive nature is made clear in the short preamble.

We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to-
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.

The very quick precis? The Constitution is a document that above all else seeks to ensure that the injustices of the past cannot, will not, ever happen again.

Understanding the Constitution should be easy for everyone, even if you don’t know what estoppel means. It should be taught in schools and there should be a wealth of resources available for teachers, lawyers, journalists and citizens’ groups to

There aren’t. In fact, at present in South Africa there’s a scary and noticeable increase in the number of senior leaders and politicians who speak as though the Constitution is a set of guidelines rather than the supreme law of the land, drawn up by the founders of the new South Africa two decades ago. Theirs is the always deceptive argument of “common sense”. That some things should be left for men, not lawyers, to decide.

There is no counter movement within civil society which seeks to highlight the power of this amazing document, and its significant successes not just in holding the Office of the President to account, but in forcing municipalities to provide basic services for their poorest residents and more.

So we want to build something that will achieve that.

“We” is a loose alliance of people from Hacks/Hackers Johannesburg, TEDxJohannesburg and Design Share Party. We have the text of the constitution and its amendments, we have the full text of every judgement made by the Constitutional Court over the last 20 years. We have no particular political axe to grind, but we do have lawyers, designers — we even have graffiti artists waiting in the wings to help launch whatever it is we build.

We want to build something that won’t just be informational, but will allow people and groups from all across the political spectrum who have taken cases before the ConCourt to share their experiences. Most of all, we want to build something engaging that will demonstrate why the Constitution should be a source of national pride.

And we’re working on a project which we plan to open to the world at an event in Joburg as part of the Fakugesi Digital Arts Festival on August 26th. We have participants, but this is a massive project likely to take years to complete, so we need a lot more.

We want to #HackTheConstitution. And we hope you’d like to too.

This story was originally published on Medium