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The Freedom Charter and Ethnicity— towards a Communitarian South African Society

Published online by Cambridge University Press:  28 July 2009

Extract

At national as well as international level the South African Freedom Charter has become a symbol of the long-standing struggle against apartheid. In this essay the emphasis will be on the charter's provisions relating to ethnicity. The question of ethnicity is a crucial one, for on its solution depends the outcome of the economic and other social problems which trouble South African society.

The 1955 Freedom Charter, which was the outcome of a joint venture of the African National Congress (A.N.C.), the South African Indian Congress, the South African Coloured People's Organisation and the predominantly European South African Congress of Democrats, suggests a unitary, participatory welfare state, which will acccord equal rights to all “national groups and races”.

For the A.N.C., the senior partner in the “Congress Alliance”, the reference in the charter to “national groups and races” soon became a major headache. Could it be said that the charter lent support to the creation of “four nations”? A number of people within the A.N.C. feared that much. Prominent among them were the “Africanists” who in April 1959 broke away from the A.N.C, and formed the Pan-Africanist Congress (P.A.C.) “Charterists” and “Africanists” are still at loggerheads, but the A.N.C.'s “Revolutionary Programme” of 1969 and its “Constitutional Guidelines for a Democratic

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Copyright © School of Oriental and African Studies 1989

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References

1 Poem by Mbuli, Mzwakhe in Suttner, R. and Cronin, J. (eds), Thirty Years of the Freedom Charter, Johannesburg, 1986, 138Google Scholar.

2 Basic literature on the Freedom Charter: Luthuli, A., Let My people Go—An Autobiography, Glasgow, 1963Google Scholar; No Easy Walk To freedom—Articles, speeches and trial addresses of Nelson Mandela, London, 1973Google Scholar; Freedom For My people—The Autobiography of Z. K. Matthews, London, 1981Google Scholar; Karis, T. and Carter, G. M., From Protest to Challenge—A Documentary History of African Politics in South Africa 1882–1964, vol. III, Hoover Institution Press, 1973Google Scholar; Marcus, G., The Freedom Charter: A Blueprint for a Democratic South Africa, Johannesburg, 1985Google Scholar; Sanders, A. J. G. M., “The South African Freedom Charter” in Hund, J. (ed), Law and Justice in South Africa, Cape Town, 1988, 222230Google Scholar; Suttner, R., The Freedom Charter—The People's Charter in the Nineteen-Eighties, T. B. Davie Memorial Lecture, University of Cape Town, 1984Google Scholar; Suttner, R. and Cronin, J. (eds), Thirty Years of the Freedom Charter, Johannesburg, 1986Google Scholar; Williams, G., “Celebrating Freedom Charter” [1988] Transformation73–7Google Scholar.

3 Cf. Gerhart, G. M., Black Power in South Africa—The Evolution of an Ideology, California, 1978, ch. 6Google Scholar; Lodge, T., Black Politics in South Africa since 1945, Johannesburg, 1983, 8086Google Scholar; Motlhabi, M., The Theory and Practice of Black Resistance to Apartheid, Johannesburg, 1984, ch. 3Google Scholar.

4 With regard to the 1969 Revolutionary Programme, see Lodge (note 3), 301302Google Scholar; for a background report on the 1988 Guidelines, see Niddrie, D., “Building on the Freedom Charter” [1988] Work in Progress 36Google Scholar.

5 For example, in the opinion of Marinus Wiechers, professor of constitutional law at the University of South Africa, who on behalf of the South African Federated Chamber of Industries, drafted the “South African Business Charter of Social, Economic and Political Rights” (for its text see the South African national newspapers of 01 21, 1986)Google Scholar, his Business Charter was in all important respects the same as the Freedom Charter! In a penetrating review of the Business Charter in The Weekly Mail of 28 February—6 03, 1986Google Scholar, Duncan Innes shows the opposite to be true (“Gearing for peace: Two charters, two visions of reform”). See also Sanders, A. J. G. M., “The Bill-of-Rights-Issue—Good Government First!”, [1986] Journal for Juridical Science 212214Google Scholar.

6 Cf. Lijphart, A., Democracy in Plural Societies—A Comparative Exploration, Yale University Press, 1977Google Scholar. Consociationalism advocates government by group leadership consensus, mutual group veto, group proportionality, and as much group autonomy as possible. In support of the consociational option are the following South African publications: Benyon, J. A. (ed), Constitutional change in South Africa, Pietermaritzburg, 1978Google Scholar; Boulle, L. J. and Baxter, L. G. (eds), Natal and KwaZulu: Constitutional and Political Options, Cape Town, 1981Google Scholar; Boulle, L.J., South Africa and the Constitutional Option, Cape Town, 1984Google Scholar; Randall, P. (ed), South Africa's Political Alternatives, Johannesburg, 1978Google Scholar; Rhoodie, N. J. (ed), Intergroup Accommodation in Plural Societies, Pretoria, 1978Google Scholar; Vyver, J. D. van der, Die Grondwet van die Republiek van Suid-Africa, Johannesburg, 1984Google Scholar; Vuuren, D. J. van en Kriek, D. J. (eds), Political Alternatives for Southern Africa: Principles and Perspectives, Pretoria, 1983Google Scholar; Slabbert, F. van Zyl and Welsh, D., South Africa's Options: Strategies for Sharing Power, Cape Town, 1979Google Scholar.

7 “The politics of culture”, Sechaba, 03 1984, 26–31, 30Google Scholar.

8 “Understanding the Charter clause by clause” in Suttner, R. and Cronin, J. (eds), Thirty Years of the Freedom Charter, 210–219, 218Google Scholar.

9 In respect of the African continent, the ideal of the communitarian nation state is reflected in the writings of nationalist leaders such as Kwame Nkrumah, Léopold Sédar Senghor, Ahmed Sékou Touré, Julius Nyerere, Tom Mboya, Kenneth Kaunda, and Amilcar Cabral. Cf. Minogue, M. and Mollow, J. (eds), African aims and attitudes: Selected documents, Cambridge, 1974Google Scholar; Mutiso, G-C. M. and Rohio, S. W. (eds), Readings in African political thought, London, 1975Google Scholar; Sanders, A. J. G. M., “On African Socialism and Natural Law thinking”, [1978] Comparative and International Law Journal of Southern Africa 6875Google Scholar, On African Socialism and the Rule of Law”, [1982] Comparative and International Law Journal of Southern Africa 299305Google Scholar, and The Invisible Constitution”, [19841985] Journal of Contemporary African Studies 277290Google Scholar.

In Western academic legal circles, Roberto Unger is today's best-known protagonist of communitarianism. Cf. his Knowledge and Politics, New York, 1975Google Scholar, Law in modern society, New York, 1976Google Scholar, and Politics: A work in constructive social theory (3 vols), Cambridge, 1987Google Scholar.

In the Communist world, the reform currently under way there—known in the U.S.S.R. as perestroika—has a definite communitarian slant.

10 Cf. Sanders, A.J. G. M., “Conflict and Consensus in South African Natural Law thinking”, [1985] Verfassung und Recht in Übersee/Law and Politics in Africa, Asia and Latin America 159168Google Scholar, and Towards a People's Philosophy of Law!”, [1987] Journal of African Law 3743Google Scholar.

11 Niddrie (note 4), 3.

12 Niddrie (note 4), 3.

13 With regard to Commonwealth Africa: The chequered history of liberal bills of rights in West Africa has been described in detail by Nwabueze, B. O., Judicialism in Commonwealth Africa, London, 1977Google Scholar, and Amissah, A. N. E., The Contribution of the Courts to Government—A West African view, London, 1981Google Scholar. The limited role of bills of rights in East Africa has been commented on by McAuslan, J. P. W. B., “The Evolution of Public Law in East Africa in the 1960's” [1970] Public Law 5–19, 153174Google Scholar; Ojwang, J. B. and Kuria, G. Kamau, “The Rule of Law in General and Kenyan Perspectives” [19751977] Zambia Law Journal 109127Google Scholar, Judges and the Rule of Law in the Framework of Politics: The Kenya case” [1979] Public Law 254281Google Scholar; Ghai, Yash P., “Notes towards a theory of law and ideology—Tanzanian perspectives” [1975] African Law Studies 31105Google Scholar; and Peter, C. M., “Justice in a One-party African state: The Tanzanian Experience, a Rejoinder” [1987] Verfassung und Recht in Übersee/Law and Politics in Africa, Asia and Latin America 235253Google Scholar. As for Southern Africa, the policy of judicial activism so enthusiastically introduced in Botswana by former Chief Justice Hayfron-Benjamin was promptly replaced by the Court of Appeal by a policy of judicial restraint: cf. Sanders, A. J. G. M., “Constitutionalism in Botswana: a Valiant Attempt at Judicial ActivismComparative and International Law Journal of Southern Africa [1983] 350–373, [1984] 4964Google Scholar; Blerk, Adrienne van, “The Botswana Court of Appeal: A Policy of Avoidance?” [1985] Comparative and International Law Journal of Southern Africa 385395Google Scholar. The demise of the liberal bills of rights in Lesotho and Swaziland has been described by Hund, J., “Aspects of judicial Review in Southern Africa” [1982] Comparative and International Law Journal of Southern Africa 276285Google Scholar. In respect of Zimbabwe, E. J. M. Zvobgo has stated that although his government is not altogether satisfied with the British-made Independence Constitution and its Declaration of Rights it will abide by them, but added that while a certain measure of tension between the executive and the judiciary was only natural, this should never take the form of actual conflict: The Zimbabwe Constitution After Four Years of Independence” [1984] Public Law 447460Google Scholar. Mauritius is the only state within Commonwealth Africa which embraced a western bill of rights with some enthusiasm: cf. Sanders, A. J. G. M., “A Bill of Rights for South Africa?” [1986] SA Public Law 18Google Scholar.

With regard to Francophone Africa: Most independence constitutions contained a liberal declaration of human rights but legally speaking these declarations were of no special import. Few independence constitutions managed to survive: cf. Reyntjens, F., “Recent Developments in the Public Law of Francophone African States” [1986] Journal of African Law 7590Google Scholar.

14 The Freedom Charter is indeed a forerunner of the Organisation of African Unity's Charter on Human and Peoples' Rights of 1981, also known as the Banjul Charter. For the charter's text, see [1982] International Legal Materials 58Google Scholar. For commentary, see Welch, C. E., “The O.A.U. and Human Rights: Towards a New Definition” [1981] Journal of Modem African Studies 401420Google Scholar; Umozurike, U. O., “The African Charter on Human and Peoples' Rights” [1983] American Journal of International Law 902912Google Scholar.

15 Cf. Plessis, L. M. du, “Law, Race and Ethnicity in a Plural Society” [1985] Journal for Juridical Science 8993Google Scholar, and ‘n Regsteoreties-regspolitiese peiling van die menseregtehandvesdebat in Suid-Afrika” [1987] Journal for Juridical Science 124144Google Scholar.