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Moseneke: Is Mandela still relevant?

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Statue of Nelson Mandela (Wikimedia Commons photo)

Justice Dikgang Moseneke is the former deputy chief justice of the Republic of South Africa. The speech below was delivered on Nov. 12, 2018 in Toronto at the inauguration of the Nelson Mandela Lectureship in Human Rights by The Raoul Wallenberg Centre for Human Rights, in partnership with the University of Toronto’s Munk School of Global Affairs and Public Policy and the Canadian Museum for Human Rights.

 

I’ve prepared a text like a good jurist. So I’m going to work through the text, and I hope that you’re going to be still wide-eyed by the time I finish. I have something to tell. I thought it was appropriate to structure it and convey it as best as I can, and I beg with you that indulgence to allow me to do that.

But I would like to say this, and I trust that it will keep you awake still: I owe my presence here to the Honourable Professor Irwin Cotler, a truly distinguished Canadian jurist and a human rights activist of world renown. During his visit to our country, South Africa, he paid me a courtesy visit in my chambers at the Constitutional Court, an apex court in all matters in our country, where I was serving as an associate chief justice of the republic. Whatever transpired at that meeting led to a kind, but resilient invitation to travel to Canada to deliver the Inaugural Mandela Lectureship in Human Rights.

I’m thankful for the singular honour to inaugurate this lectureship. As I do so, I hope to ponder over Nelson Mandela’s tireless devotion to the advancement of fundamental rights and freedoms. I am in deep awe of his relentless combat against colonialism and apartheid. I remain amazed at how Nelson Mandela survived 27 years of unremitting imprisonment, 18 years of which was in solitary confinement on Robben Island. Many watchers of Nelson Mandela would choose to glorify his sheer tenacity to fight a good fight. Some might single out his near impeccable leadership of the African National Congress and of oppressed people in the long struggle for liberation. Others might venerate him for his selfless desire to free and serve others. And yet some might be in awe of his choice to favour forgiveness over revenge. Yet other watchers of Nelson Mandela might be struck by his perennial humility, his assertion that all praise is due, not to him, but to the collective of good people of all ilk who sought to defeat apartheid both at home and across the world, including Canadians.

But what fascinates me to no end is the prophetic leadership Nelson Mandela assumed when victory against apartheid was in full sight and transition was certain. But having been a jurist for over 40 years now, I’ve chosen to celebrate a particular niche in the many glittering features of the life of Nelson Mandela: the space he afforded the growth of a robust and liberating jurisprudence infused by all the goodness of our humanity.

To that end I’ve chosen to examine three subsets. First, how Nelson Mandela engineered the transition from apartheid to constitutional democracy. Second, I’ll peer at Nelson Mandela’s notions of transitional justice. And third, the way he forced that constitutionalism that favoured robust jurisprudence and human rights during his presidential watch and later. Lastly, I pose the difficult question: have the romanticized world of indivisible, interrelated and self-evident truths, crystallized into domestic and global fundamental rights and freedoms, lost purchase in a post-truth world marked by insular nationalism, ethical relativism and a retreat from multilateralism and international human rights norms?

But who is he? At the outset of the inaugural lecture we must surely ask: who is Nelson Mandela? In his seminal biography, Long Walk to Freedom, he relates his first day in class as a tiny rural boy. What is your name young man, the English lady teacher asked? I am Rolihlahla Mandel, ma’am. What? Who? What did you say? No, no. You are Nelson, she fired back. Neither the English lady teacher nor the newly anointed Nelson knew what all that would mean to him and to the world. Nelson Mandela embraced this colonial imposition of a name from his childhood and carried it up to the lofty heights of global renown and deep reverence. Most in the world who can see or hear, know who Nelson Mandela is, what he stood for, and what long walk to freedom he ventured to the end of his life.

This year Nelson Rolihlahla Mandela would have been 100 years of age. We in South Africa and around the world have been celebrating his centenary year. He was born in 1918 on the 18th of July in the small Eastern Cape village of Mvezo. The anniversary of his date of birth is celebrated annually by the United Nations as Nelson Mandela International Day. He sprouted from the Madiba clan, a part of the AbaThembu people and AmaXhosa royalty; but his father died early in his childhood.

He was the first in his family to attend school, enrolling at the Methodist Primary School in Qunu. After high school Mandela was admitted to the University College of Fort Hare, then reserved for indigenous Africans. There he studied a Bachelor of Arts. These became formative years in Mandela’s political upbringing. He met fellow comrade and lifelong friend Oliver Reginald Tambo. Then, many anti-colonial leaders of the time attended the same university, including Robert Mugabe, who became president of Zimbabwe, Seretse Khama, who became president of Botswana, Robert Sobukwe, the founder and leader of the Pan-Africanist Congress, and Mangosuthu Buthelezi, founder and leader of the Inkatha Freedom Party and later a minister in Nelson Mandela’s first democratic cabinet.

Mandela’s role in student politics saw him expelled from the university in the final year of his BA studies, only to complete his degree through another university. Soon after, he wound up in Johannesburg, secured a position as an article clerk and apprentice in a law firm. He then enrolled for the LLB degree at the University of Witwatersrand in Johannesburg, but became increasingly involved in politics. He joined the African National Congress, helped form its youth league, and later rose to become its national president.

READ: HOW MANDELA WON OVER THE JEWISH COMMUNITY

In 1948 the National Party took over power in South Africa and expanded segregation by introducing apartheid legislation and policies. A young, strident, militant and angry Nelson Mandela vowed to combat apartheid, oppression, and exclusion. He became even more instrumental within the African National Congress and its leadership structures, and unsurprisingly, the apartheid regime chose to end his public activism. In 1952 he was charged under the Suppression of Communism Act, found guilty, and sentenced to nine months of hard labour; suspended for two years.

Despite this, Mandela approached the high court and sought admission to practise as an attorney — or solicitor as you would say — despite the conviction. Ramsbottom J penned a remarkably progressive judgement, given the apartheid setting of the time. He admitted Nelson Mandela as an attorney, reasoning that Mandela’s conviction did not point to ethical turpitude, but rather demonstrated his distaste for the political system he found himself in. Shortly thereafter Mandela and Oliver Tambo set up the famous law firm in Johannesburg, Mandela & Tambo Attorneys.

I rehearsed the detail of Mandela’s fight to be admitted as an officer of the court for two good reasons. First, at a selfish level; 25 years later I relied on the precedent of Mandela vs Incorporated Law Society when I moved my application for admission as an attorney after my ten years’ incarceration on Robben Island for political activism. Like Mandela, I pressed on the court that I was not only properly qualified, but also I was a fit and proper person to practise law because my imprisonment was a matter of political conscience and not of lack of ethical probity. Like Nelson Mandela, I was admitted to the Side Bar and later to the Bar despite being an ex-con, in case you wondered.

The second reason for narrating Nelson Mandela’s admission as an attorney is that he was an odd mixture of a revolutionary that is a destroyer of the status quo on the one hand, and a keeper of the law. In other words, he valued the normative rigour of the law and its potential to do good, and yet he was deeply intolerant of unjust laws, particularly of a variety that insulated the law from domestic revision, as apartheid was. Nelson Mandela observed that the law was harnessed in the service of a crime against humanity: apartheid. In sum, he hated injustice deeply and gave his life to combat it.

After he started practising law, Mandela’s life became a litany of banning orders, house arrests, incessant political trials, ending with life imprisonment. Around 1955 he was arrested, along with 155 other high-profile anti-apartheid activists and indicted for high treason. The accused had to endure a treason trial that lasted for six years, only to be acquitted in 1961, thanks to the high-end defence team led by Isa Maisels Q.C., a close associate, who happens to be a close associate with Irwin Cotler. But in 1960 the PAC initiative led protest marches against pass laws. In response, the police killed 69 unarmed people. This became known as the Sharpeville Massacre. Following the tragic events, a state of emergency was declared. The ANC and the PAC were both banned.

This meant that Mandela’s membership of the ANC and its peaceful protest strategies were rendered unlawful. I need not say that that was not enough to restrain a young, angry Nelson Mandela — his revolutionary fervour. Mandela and his comrades felt justified to resort to the armed struggle as a legitimate form of resistance. And therefrom sprung up Umkhonto we Sizwe, launched on the 16th of December, 1961. And for his leadership of the MK, as early as 1961, Nelson Mandela was charged and sentenced to five years in prison. Whilst in prison, the police raided Liliesleaf Farm — a secret hideout of ANC, the Communist Party activists in Rivonia — and arrested several other leaders. Although in prison, Mandela was implicated in the documents found in the raid. He was charged together with his co-accused with capital crimes, sabotage, in what became known as the infamous Rivonia trial.

While facing the death penalty, instead of pleading for mercy from his trial court to save his life, Nelson Mandela burst into these memorable lines we shall now inscribe to the walls of our constitutional courts:

 “I have fought against white domination and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal for which I hope to live and to achieve, but it is an ideal for which, if needs be, I am prepared to die.”

He was condemned to life imprisonment, which meant his natural life in jail. He served 27 years, as you heard, 18 years of which in solitary confinement on Robben Island.

As a tiny lad of 15 years of age, I met Nelson Mandela while serving my but ten years imprisonment on Robben Island. He became a father figure and a mentor to me. That comradely and paternal bond was to persist and guide through the course of my career at the Side Bar, at the Bar, later as a judge of the high court, and a justice of our highest court.

At his express request I appeared as counsel for his wife, Nomzamo Winifred Madikizela-Mandela on a collection of criminal charges, the so-called “Stompie Trial.” At his invitation I served, as you heard, in the technical committee that drafted our interim constitution. He caused me to be appointed as co-leader of the body that ran our first democratic elections in 1994. I helped form and served as chair of the Nelson Mandela Children’s Fund, one of his first loves, for over 15 years. I acted as initial counsel in divorce proceedings with his wife, Winnie Mandela. And I must add I was Winnie’s counsel, and not Nelson Mandela’s counsel, whilst he was the Head of State.

It is no exaggeration that Khabonina, my wife, and I were close family friends. He indeed did much to persuade me to accept the nomination to the high court bench. In his feebler years he asked me to accept his nomination that I act as the executor in his deceased estate and trustee in his inter vivos family trust. Both roles I have dutifully fulfilled since he passed on.

Finally, on the 11th of Feb. 1990, Mandela was unconditionally released from prison. Tough constitutional negotiations ensued. A new democratic constitution was crafted by consensus. Mandela and the majority of South Africans cast their votes and Mandela became our first democratic president and rightly the father of our reborn nation.

And true to his word, Nelson Mandela remained in office for a single term of five years. He donated his presidential salary to a few needy chosen causes. He retired from politics in 1999. He was indeed beyond the allurement of money, of political power and of glory.

After suffering from a prolonged respiratory infection, Nelson Rolihlahla Mandela succumbed in his home in Houghton, Johannesburg, on the fifth of Dec. 2013. And they buried him, as his will directed, at his ancestral home in Qunu.

The finest hour of Nelson Mandela’s long and complex life was to live the transition from apartheid to democracy. It matters not how one characterizes the transition. It was characterized variously in many papers at home and elsewhere in the world. Near the end, significant domestic actors had firmly resolved to negotiate a new constitutional framework that would bring a screeching halt to centuries of strife.

Two additional features of the transition reassured many activists. The first was the unilateral unbanning of all liberation movements and the release of political prisoners. Second, the primary demands of pro-democracy forces, unqualified franchise for all, and the constitutional entrenchment of a bill of rights. It was a revolution if you imagine what the provisions under apartheid were. And these were readily considered by the minority ruling clique up front.

Third was the separation of the constitution-making process into two phases. The interim constitution would be agreed upon first, but by political parties with untested democratic support. This meant that only a constituent assembly of elected representatives of the people would adopt the final constitution. So to speak, we the people, through our elected representatives, would in that way usher in a new constitution. And to these considerations must be added a shared belief in the relevance of the law in the process of transition.

READ: WHEN I MET NELSON MANDELA

Academic commentators attribute the confidence of the domestic negotiations to the usefulness of the law in the transition to a variety of factors. I think beyond the fact that Mr. Mandela and de Klerk were trade lawyers, a factor often rightly raised, there were significant practical legacy considerations that impelled negotiation trust towards resorting to a formal legal process in order to give effect to the transition. And this makes our transition different from many around the world.

First, the minority legislature, so to speak the purveyors of apartheid, undertook to fall on their sword. A sitting parliament had to disestablish itself. It had to adopt an interim constitution that would lead to the demise of apartheid and usher in majority rule.

Second, the uppermost practical concern was that the transition had to occur in an orderly fashion. It was thus imperative that it occurred on a ‘going concern’ basis. Any significant disruption of governance and of daily administration would have threatened and discredited the transition to democracy. Properly so, the transitional provisions of the interim constitution preserved our laws, which immediately before its commencement, were in force subject to any subsequent refit or amendment by a competent authority. In this, Nelson Mandela insisted all the time that even in a transition as drastic as this, there will be order and there will be the rule of law. And that we his lieutenants ensured.

Third, the interim constitution carried a number of vital protections from the ruling minority. Thus, the inaugural duty of the newly-established constitutional court was to certify the formal constitution for consistency with the constitutional principles enumerated in the interim constitution. In that way the curtain fell and the horrific drama of apartheid came to a formal end. We who were born in and lived through a revolution represented with a historic privilege to be the founding mothers and fathers of our supreme law; it was Nelson Mandela who steered us to that historic privilege of our lifetime.

But then transitional justice issues inevitably arose. Notions of transitional justice gained currency, as we will all remember, after the Second World War in relation to the crimes of German and Japanese generals and soldiers. The Nuremberg trials were directed mainly at criminal accountability. The prevailing stance of the victors was that war crimes had to be punished and reparation paid. In the 1970s and 80s, members of military juntas in Greece and Argentina were too brought to trial and the positive by-product of these trials was the rise of international human rights law and conventions. Also, the discourse migrated from merely indicting recalcitrant generals, to being — I quote – “self-consciously victim-centric,” and thus inducting democratic practice inspired by international human rights. And the next innovation was the emergence of truth commissions as we saw in Argentina for instance in 1983, in Chile in 1990.

And the next was us in 1995 under the leadership of Nelson Mandela. Thus, the conundrum of transitional justice that faced us in South Africa was complex, but not new. We had to ask the same questions. What should we do to our oppressors, to the recalcitrant army generals who committed atrocious crimes against civilians in defence of an apartheid military state? The generals who bolstered apartheid would not support F.W. de Klerk and the transition to democracy without a promise of amnesty for their ample and heinous crimes against civilians during apartheid. And many pro-democracy activists, including me I must add, and including Mandela’s own party members initially opposed amnesty for politically inspired crimes by security forces, particularly as they sought it in a blanket form. They demanded full… activists demanded full reparations for civilian victims and criminal accountability.

Mandela swam against the collective stream of historical pain and anger. He carefully argued that ours was not an outright military victory, but a post-conflict compromise. Our historic duty was to buy peace and stability in order to establish a flourishing democracy that will force the reconstruction and development. The prize for peace and stability, Nelson Mandela argued, was national reconciliation and amnesty. The activists replied to Nelson Mandela that even if his amnesty argument had merit, it had to be contingent on divulging past’s pain and confessing historic wrongdoing. This resolution of this difficult debate, which Nelson Mandela won, found its way into the compromise found in the epilogue to the interim constitution. And it is crafted in poignant words.

 “The adoption of this constitution lays secure foundations for the people of South Africa to transcend the division and strife of the past which generated gross violations of human rights, the transgression of humanitarian principles in violent conflict and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding, but not for vengeance; a need for reparation, but not retaliation; a need for ubuntu, but not victimization. In order to advance such reconciliation and reconstruction, amnesty shall be granted due respect of acts, omissions and offences associated with political objectives and committed in the cause of conflict of the past. To this end, parliament under this constitution shall adopt a law providing for the mechanism through which such amnesty shall be dealt with any time after the law has been passed.”

Truth and reconciliation hearings were held under the applicable statute and presided over by Archbishop Desmond Tutu. Much pain and many confessions of crime came to the fore. The jury is indeed still out on the usefulness of the process in our context. But on balance, of all remarkable things Mandela has accomplished in his long life of struggle, his contribution approach to transitional justice stands out. Had he got that wrong, the whole transition would collapse, would have collapsed entirely and violence would have overtaken it.

My last compliment I accord to Mandela is the space our constitutional architecture afforded the protection of human rights and resultant jurisprudence. We opted for restraining and controlling all public power and private power within an overarching basic law. To that end, we have opted for a system which separates and divides public power, but polices its exercise rigorously. This does not mean the democratic ethos is subsumed by judicial oversight. The will of the people was encrusted into law. It binds all, including the judiciary. We have entrenched a fulsome catalogue of fundamental human rights and have enjoined the state to respect, protect, and promote and fulfil these protections.

In our jurisdiction, all law or conduct that is inconsistent with the constitution is invalid to the extent of its inconsistency. This means that all public power and in certain limited circumstances, private power is subject to constitutional control. The state must promote it. It must advance it and obey its constitutional obligations. And the judiciary is vested with plenary powers to review legislative and executive conduct. Put tersely, the judiciary is enjoined to police compliance of the constitution. And it is this remarkable constitutional architecture that has afforded a senior judiciary unprecedented powers of judicial review.

We had the space to start afresh from horrible jurisprudence of apartheid, to craft a new jurisprudence. And that we did to our hearts’ content. It is in that inspired constitutional setting that our court fashioned a remarkable jurisprudence from the ashes of our historical phoenix as we created a new jurisprudence anew, we’ve looked unashamedly to other jurisdictions and this our constitution permits. It requires us to consider foreign law by which we are not bound, and yet we are obliged to consider. And yet we readily embrace and learn from competitive jurisprudence. We are obliged to give effect to customary international law, unless it is inconsistent with our law.

Similarly, we respect and have to give effect to our international treaty obligations and conventions. And this we learned from global solidarity — the support the whole world gave us. And it was our turn to embrace those norms of global decency. Our admirable rise to jurisprudence has much to thank of the Canadian jurisprudence. In our content analysis of fundamental rights, when appropriate, we have sought guidance from the European Court of Human Rights. Added to this are opinions or judgements which are already liaised, as I said, from international legal norms and standards. And in order to strike a balance between competing constitutional guarantees, we also look to the provisional jurisprudence of the German Constitutional Court.

Returning to the Canadian love affair, our case law liaison, Chief Justice, the Canadian jurisprudence has several substantive reasons. As with most domestic jurisdictions, our case law too is answerable only to our constitutional norms and the context in which they find application. Nothing inconsistent with our basic law may be grafted onto our case law. On the other hand, our basic law enjoins our courts and tribunals, as I’ve said already, to consider foreign law. And many of our courts have taken this injunction seriously and assumed this interpretive license. To that end, we’ve have tended to look to Canadian rights jurisprudence more readily than our erstwhile colonial masters, the United Kingdom; certainly not… certainly not the United States.

The one reason is that the catalogue of fundamental rights in our bill of rights, in part, echoes the Canadian Charter of Rights and Freedoms. We had the opportunity to look when we made our own constitution and we looked at what you had written. Save for certain qualifications in Chapter 9 of the charter, both texts bind Parliament and all organs of state. Both sets of fundamental rights and freedoms are justiciable – courts may pronounce on them, in other words. Perhaps the most abiding influence of Canadian rights jurisprudence on us relates to the limitation of rights analysis and the cognate or proportionality tests. The limitation of the right clause in Section 1 of the charter provides very similarly South Africa’s Section 36, that rights and freedoms in the charter are subject only to reasonable limits prescribed by law as can be reasonably demonstrated to be justified in a free – we have rather opted for “open” in the place of free – democratic society.

Unlike our limitations rights provision, the charter itself does not spell out factors to be taken into account when determining whether a limitation is reasonable and justified. The factors have been developed by case law since the adoption of the charter. And you’ll remember quite well Chief Justice, in 1936 Rex versus Oaks, your Supreme Court held that Section 1 of the charter contemplated a two-stage process for judicial review of legislation; the first being whether impugned law limits the right, and second, whether the limitation is reasonable — one that can be demonstrably justified in a free and democratic society.

So to later in 1994, you’ll remember quite well the justification criteria set in Rex versus Oaks, which found its way into limitation analysis and ultimately into our first case, State versus Makwanyane, which was a death penalty case in South Africa, that we too share with you the two-stage analysis on the limitation of entrenched rights premised on what is reasonable within an ‘open,’ or if you like, ‘free’ and democratic society. Both our rights limitation just and free analysis are rooted in proportionality. And it is interesting to note that the German constitution does not have a general limitation clause in the sense of Section 36 of the bill of rights, or Section 1 of the Canadian Charter. Many of the rights provided for contain internal limitations.

We didn’t stop there. Our borrowing from Canadian jurisprudence extended to a few other areas of our law, the State versus Zuma, not the one you know. Another one was charged for a heinous crime. One of the first cases of the new constitutional court of South Africa decided on the reverse onus provision in the criminal procedure code, which unjustifiably placed a burden of proof on the maker of the confession — that is the accused person — and our new court didn’t go too far, but looked at your jurisprudence and relied on Rex versus Big M Drug Mart Limited by Dickson J, as he was then, and later your Chief Justice of Canada. The reasoning was fortified by Rex versus Oaks and again fortified by Rex versus White and later by Rex versus Downey. And our court upheld, as your courts did, that a reverse onus was inconsistent with free trial rights.

We went on, as you do, to adopt purposive interpretation of constitutional provisions that has now settled part of our law. And today earlier, Chief Justice, was a debate between a Justice from your court and a Justice from the Supreme Court of the USA. It was a big debate about what… how interpretation ought to be conducted. I had this one big smile that would resolve this at the behest of Canadian jurisprudence a long, long time ago. No originalism. No originalism. Purposive interpretation. And our court went down that route and ultimately also relied on Kindler versus Canada.

Of course nothing of what I’ve just said, if it has put any smiles on Canadians who are here present, means that our democratic enterprise is a replica of Canada’s experience. There are marked differences deriving from our unique social and political contexts of the respective countries at the time of leading up to the adoption of the constitution. I’ve said this all with some detail to those scholars who want to look at those differences and I’m not going to impose them on you right away. But the one thing I must say that we have adopted: an unrelenting constitutional Supremacy Clause with strident repugnancy consequences, and therefore all law conduct that is inconsistent with the constitution is invalid. And this again comes from the distastes — historical distastes — where apartheid and parliamentary sovereignty imposed a lot of positivistic harm on ourselves.

And, again, our constitution, unlike yours, does not have only vertical application but also has horizontal applications. So we can hold to account anybody exercising power akin to the way a government does. But the third important difference with yours and our constitution is that we have written in socio-economic rights into a basic law, and these are justiciable.

Further difference, we have 11 official languages. You have only two. So we… and that was in the quests to demonstrate Nelson Mandela’s desire for unity and diversity, as mirrored even in the languages that we protect. And because of all this, that he did, thus far courts have been remarkable.

We struck down capital punishment. Right outright as inconsistent with fundamental human rights and declared it cruel, inhuman, and degrading. We struck down scores of laws and executive action that undermined appropriate respect for diversity, or where they were under-inclusive or where they harboured antiquated prejudices. Amidst many ramblings, courts would not tolerate, for example, homophobia in our country; or gender inequality inspired by religious or cultural patriarchy.

We have insisted that laws and policy must provide for adequate protection of children, root out domestic violence, people with disability, refugees as well as migrants. In a series of cases, we have given content to the right of freedom of security of the persons. We have not hesitated to strike down legislation inconsistent with our supreme law and of any executive decisions and unlawful administrative decisions. This is not judicial overreach because the constitution itself authorizes and compels our cause to declare unconstitutional, laws or executive conduct that offends the constitution.

Our people, led by Nelson Mandela, have chosen to require the judiciary to police the frontiers of the constitution. The wisdom of granting the judiciary wide constitutional review powers became ample in the last ten years. We could not predict that Nelson Mandela was preparing us for the next backed leader we’re likely to get.

The constitution shields the judiciary from undue executive and legislative interference. It is answerable to the law only. That proved to be valuable protection to our people and its new democratic institutions. The focus of our jurisprudence shifted from rights enforcement to legislative and executive probity. The more recalcitrant the executive arm of our state became, and trust me it became so over a whole decade, the greater the need was for judicial supervision despite repeated accusations of judicial overreach by the executive offenders. And luckily the civilian populace of our country supported the judiciary to the hilt during these difficult times in our country.

In some of the worst of times the judiciary held out to the constitutional promise inducted by Nelson Mandela. It is Nelson Mandela that I credit with that remarkable constitutional architecture and foresight that accrued to the benefit of the people of our country.

I’m at the end and this is the question I leave you with: Is Nelson Mandela still relevant; old fossil to be forgotten or still relevant? What remains is to ask whether Nelson Mandela’s world is still relevant to his country and to the broader global community? The answer may be self-evident; every one of you is going to say ‘yes, of course he’s relevant.’ And yet, I’d not propose to answer the question today.

I’m here to urge you to interrogate that very question. Let it suffice to draw attention to several dark clouds gathering. At home, and at Nelson Mandela’s home, young people suggest that Nelson Mandela made compromises with the apartheid regime that rendered the transition to democracy less than useful. They use unkind words like ‘Nelson Mandela sold out.’ We can talk about that a little later.

And I’ve been from campus to campus in law schools to debate the compromise, the transition — transitional justice. Whether truth and reconciliation worked and whether we did the right thing historically. So, for starters in his very home the prophet is being questioned and whether the transition was useful. They argue that the compromise failed to resolve poverty, social inequality and landlessness. And I often say to them, ‘you’re collapsing many things into one.’ He created the opportunity for us to battle poverty, social inequality, and landlessness; and you cannot attribute that to him.

Without a doubt many leaders in his movement, in government, have not always covered themselves in glory. They have not always lived to the highest values that he has set for us as a people and often they have undermined his aspirations. And some of us have said so, so many times and so many judgements pointing this quite poignantly, and might I add, bravely.

Other clouds are also gathering. Across the globe we are battling with post-truth notions of relative and floating values. Nothing is self-evident anymore and arguments are that there is no such thing as a self-evident truth. Narrow nationalism and jingoism, chauvinism, if you like, in large and important countries are replacing global solidarity, compassion, and sharing. Patriotism is indeed welcome, but narrow, selfish, self-interests threatens human solidarity which underpinned the finest notions of fundamental rights and freedoms of human rights across the world.

Nation after nation is falling to right-leaning conservatism. Some even espouse white supremacist stances. Patriarchy is all in order. Women are fair game to abuse and to ridicule; homophobia and other irrational obsessions. And this is what Nelson Mandela fought for all his life — to dislodge all these irrational obsessions.

In consequence, we see often multilateral cooperation which is hardly a norm anymore. Many feel free to break away from those decent… those norms of decency that we have crafted and crystallized painstakingly through historic sandbags. War zones in developing countries still abound and civilian victim order and crimes against humanity are ever increasing. Social inequality and instability is causing migration and displacement. All of these posing a serious threat to our notion — our globalized notions — of human rights. And moreso, human rights are violated in increasing countries.

And I’m justified to therefore ask you, is Mandela and are human rights still relevant in our world? What do you say?

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