Thirty years after South Africa chose the rule of law over division and the rule of human rights over the rule of exclusion, the country on Monday began commemorating 30 years of the Constitution – a world-renowned document born of negotiation, compromise and public engagement on an unprecedented scale.

Justice and Constitutional Development Minister Mamamoloko Kubayi led the national launch on Monday, which also marked the beginning of Human Rights Month at the Apartheid Museum in Johannesburg.

Kubayi said, “Because of the adoption of the Constitution 30 years ago, we now have a foundation upon which we can strive towards a common vision of unity in diversity, as well as strengthening a culture of respect for human rights and the rule of law in South Africa.”

creation of a miracle

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The Constitution is a product of collective interaction with the many politicians, legal scholars, intellectual architects and negotiators who participate in its creation.

The large-scale public participation is often overlooked, which saw approximately 1.7 million submissions from individuals and civil society organizations – making it an inclusive body of legal work.

“The Constitution making process was one of the most inclusive processes in modern times.

“The inclusiveness of the process is best described by Justice Albie Sachs when he said the following about the Constitution: 'We wanted a Constitution that was smiling to the people – but it should not be a sarcastic smile, or an insincere mask of a smile. The smile should come from within, so that people can believe it, because it is authentic. And the smile contains tears, and sadness, and the knowledge of imperfection.'

Kubayi said, “The Constitution is testimony to the fact that intelligent men and women of all races, religions and diverse cultures came together freely to build a new nation in South Africa, which belongs to all the people, black and white, who live in it.”

decisive break with the past

The minister said that “to truly appreciate the enormity of what the Constitution…represents, one must first look at what came before it”.

“For more than three centuries, colonialism and then apartheid not only discriminated – it institutionalized and systematized human degradation, and in particular, that of the black South African majority. Both colonial and apartheid regimes enshrined racial hierarchy into the very framework of law, so that the institutions that should have protected citizens became instruments of oppression. Justice was not blind; it was deliberate, and it saw race.

“Therefore, what was achieved by the negotiated transition in the early 1990s was not just a political transfer, but a civilizational realignment. The 1993 Interim Constitution described that moment as a historic bridge, because it symbolized the move from conflict and injustice to peaceful coexistence based on open democratic governance and the pursuit of universal human rights.

“That bridge, in 1996, led to the final Constitution, a document that did not simply list rights but enshrined them as the supreme law of the land, binding the executive, legislature and judiciary alike,” Kubayi said.

When law overtakes life

The minister acknowledged that the years since the adoption of the Constitution have not been “smooth or without contradictions”.

“However, the record of these 30 years also shows that the communities who paid a heavy price for apartheid's deliberate impoverishment have not experienced the pace of change that is rightly enshrined in the provisions of the Constitution.

He said, “People who were systematically denied access to property, education, and the basic conditions of a dignified life have found that, although the legal order has been fundamentally reorganized, their material circumstances have not changed with any decisiveness.”

The minister cited “corruption, persistent resource shortages and uneven implementation” as some of the key challenges that have “put the pace of delivery far from what the legal framework envisioned”.

“The result is a constitutional democracy in which legislation has moved with significantly greater speed and clarity than the physical reality it was explicitly designed to replace, not because the framework is desirable, but because the administrative and financial conditions necessary to give it full effect have not been consistently maintained.

“This is the central tension that has yet to be resolved in three decades of constitutional democracy. This framework has proven its durability in the courts, the legislature, and the institutions created to give effect to it.

Kubayi said, “What has not caught up is the translation of that framework into the daily lives of the people it was most essentially intended to serve. This is the most consequential measure by which this constitutional project will continue to be evaluated.”

a living document

Despite these challenges, the Minister stressed that the Constitution was never designed to be a “static”, unresponsive document.

“From its inception, it was conceived as a living framework, capable of responding to a constantly changing legal, social and political context.

“As reflected in the reconstruction and development program's insistence on integrated, people-driven, sustainable development, the Constitution has in its very structure the expectation that the work of change will continue, rights will be progressively realised, and the institutions of justice will continue to evolve in response to the demands placed on them,” he explained.

bastion of human rights

The minister described the “structural integration of the justice system” as one of the most consequential achievements of the Constitution.

Along with this, this document also provides for the advancement of human rights.

“[It]is here that the accountability of the Constitution is perhaps most clearly demonstrated. At the heart of the constitutional arrangement lies the Bill of Rights. Chapter 2 does something ambitious which, thirty years on, still deserves applause, particularly in its refusal to treat civil and political rights as any more real or more pressing than socio-economic rights.

Kubayi said, “The rights to equality, human dignity, privacy and freedom of expression are expressed alongside the rights to housing, health care, food, water and education. These rights are far from aspirational ornaments; they are equitable rights, enforceable in courts of law. What makes them particularly important is that it does not make them withheld in time.”

He said that the Constitution's interpretive framework “obliges courts to develop the content of rights in a way that is consistent with current circumstances and evolving understandings of human dignity”.

“The legislation giving effect to this approach has progressively expanded the reach of the Constitution in citizens' everyday encounters with government, addressed unfair discrimination, protected access to information, and emphasized transparency, legality, and rationality as conditions for legitimate administrative action.

He said, “Our Constitution has set the framework for our human rights realization discourse and the Constitutional Court has been a pillar that has interpreted the basic minimum of these provisions, as set out by the Bill of Rights.”

The Constitution also makes provision for hard rights that have independent guardians in the form of Chapter 9 institutions, such as, among other institutions, the South African Human Rights Commission and the Gender Equality Commission.

“Chapter 9 of the Constitution recognized with considerable foresight and accordingly established a set of independent state institutions whose specific mandate is to strengthen and maintain constitutional democracy.