CONSTITUTION @ 30: A radical love letter to the Constitution

On 10 December 2026 you are turning 30. I’d like to take advantage of this important birthday, coming at a complicated time in the life of our nation, to say a few things about our long relationship.

It’s time we took stock of one another. 

You and I were engaged even before you were a twinkle in our country’s eye. When you were born you already embodied the ideals of social justice, equality and the dream of democracy that so many people had fought so long for.

Yet, after you were born, a child of a few years of negotiation – the fate-filled co-mingling of dreams, destinies, demands, diverse peoples – it took me some time to turn to you to fully understand your possibility, simplicity and complexity. 

You had an inner strength, but like a human child you were never going to stand on your own. Your promises were not going to be self-executing, you depended on respect, connection, collaboration, organisation, partnership.  

You were born at the right time. 

A violent country needed a moral compass; social breakdown needed structure; lawlessness needed law; we were hungry, demands for bread, land, health and housing – freedom in other words – needed a pathway to their realisation.

A prisoner became a president. A new state was born. You offered its architecture, more aspirational than real. We began building. 

But you were also born at the wrong time. 

The people who shaped you, the lawyers who sculpted you, ensured you embodied the world’s most advanced thinking on human rights and constitutionalism in the early 1990s. But they did so just as the elites of the world were beginning to pull the rug on the commitment to a binding social contract that tuned to the lodestar of equality and social justice. 

You came into this world just as the neoliberals and aspirant oligarchs were working out how to avoid paying taxes towards a better and fairer society, however grudgingly. 

“No funds available,” they soon declared. 

No funds available, they still declare. 

Every. One.

In that context it was going to take superhumans to keep you alive.

Across the political spectrum people saluted your birth. But you were never properly understood, you were not taught to the people who needed you most; the rich chose the parts of you they liked most, and ignored the rest; you were respected more in the breach than by honouring your promises of human dignity, equality and social justice for “everyone”. 

That is: Every. One. 

Every person who was impoverished by apartheid. Every beggar. Every migrant. Every refugee. Every woman. Every child. Every person with a disability. Those with disease. The prisoners.

With a few exceptions, access to life-saving drugs for Aids being one of them, your promise to the poor of a better quality of living and the dignity that brings has not been kept. 

In the language of lawyers, you have done a good job protecting civil and political rights, but not in ensuring the fulfilment of socioeconomic rights. 

So, tens of millions of people still languish in social injustice. 

People die of preventable hunger. 

People die of preventable disease. 

Women and girls die of preventable genocide. 

That is why, 30 years after your birth, our society is so fragile, violent and broken. 

This is our greatest failure. It’s a failure of government, a failure of power and wealth. 

It’s not your failure. And yet it presents the greatest danger you face. An existential danger, literally.

A few days ago someone I respect said your ability to survive the next 10 years may depend on two things: access to food and safety. Both of these are your rights.

Many times I wish we were bolder and braver in our relationship. 

Your beating heart

But before I go there, let me say that nonetheless, at key moments in our democracy, you have been a continual reference point, a touchstone that has stabilised our society.

As twentieth-century means of enforcing state and corporate accountability grew weaker – bona fide political parties, independent and accountable trade unions – it was civil society activists who first turned to you to fill the breach. 

In the year 2001 people living with HIV turned to you in the Treatment Action Campaign (TAC) case. The ruling of the Constitutional Court, handed down on 5 July 2002 (a birthday of hope), has helped save six million lives. 

We have also turned to you to vindicate, posthumously, the rights of little Michael Komape, who died in a school pit toilet, and the Life Esidimeni 144, who died after being cast to the wolves by callous politicians who we hope will still see the inside of a prison.

Lawfare has prevented warfare. 

As society became polarised, as State Capture consolidated, key judgments on issues such as Nkandla and the powers of the Public Protector, or Phala Phala and the powers of Parliament, put us back on track. 

The Constitutional Court, born from a seed within you, your beating heart, has delivered 1,072 judgments in the past 30 years. 

And rising. 

If you study these judgments, you can see how the judges use your words to outline the contours of a good society – fair, rational, reasonable, redistributive, pro poor. If only those with power, and those without it, paid attention to the legal and moral reasoning that went into them, and the insights and dicta that fill them. 

They don’t. 

One of democracy’s last hopes

What’s the future of our relationship? What’s your future?

I am still glad that you have survived a rough childhood. 

Most of your siblings have gone. The wave of democracy that followed the popular uprisings of the 1980s and early 1990s in Africa and Eastern Europe gave birth to democratic rights-based constitutions from Poland to Zimbabwe. But in the intervening years we have seen most of them violated. 

Today, across the world, you’re one of democracy’s last hopes.

Some people foolishly say we would have been better without you. They are so wrong. I ask them, would you rather have a supreme law that stands firmly for human rights and social justice, than a dog-eat-dog society with no law other than survival of the richest, or a theocracy à la Iran, a kleptocracy à la Russia or the rule of a supreme party à la China? 

In which country is it easiest to organise and mobilise for social justice, and in which country are the prisons full of activists and the executioners busy? 

There are some extremely turbulent times ahead for you, me and those we love. Geopolitical turmoil, climate turmoil, war, the possibility of another pandemic. Truth be told, most of our politicians don’t have a clue what to do in these “end times”. Yet, populist politicians will turn on you. They will blame you for their failures. They will – for good reason – see you as a threat to their freedom to steal and oppress.

We will need your animating spirit if dreams of justice and equality are to survive. 

We will need your instruction to restructure our society so that life and the environment are sustainable for all. 

We will need to follow your democratically arrived at rules and seek your continued protection as we organise, engage, reorder. 

In historical terms you are barely out of childhood. The US Constitution, or what’s left of it under Trump, is 239 years old. The Indian Constitution, or what’s left of it under Modi, is 76. 

You are turning 30. But the times are against you. 

Well done on being largely intact at 30. However, whether you and the vision you hold survive another 10 years (never mind 30!) depends on whether your promises are fulfilled, particularly the human rights you offer to fulfil: housing, healthcare services, sufficient food and water, basic education. 

Your future depends on your power to transform South Africa and South Africans.

It depends on people with wealth and power, who say that they support you, taking you seriously, and being prepared to share in the country’s wealth.  

You will need to continue your relationship with activists like me. But you also need a brave, honest government, a visionary private sector and a vibrant civil society. In other words, your future – our future depends on everyone else who reads this love letter. All of us.

In solidarity and radical love, 

Mark Heywood. DM

This story is part of a series marking 30 years since the signing of the Constitution. The series has been made possible, in part, by the support of the Friedrich Naumann Foundation.