MILTON HIGH SCHOOL, BULAWAYO, ZIMBABWE
Headmaster, distinguished guests, ladies and gentlemen and last, but not least, boys.
I am greatly honoured by your invitation to deliver the 1994 Milton Address. Shortly after receiving the invitation I was sent copies of previous addresses and I confess to being daunted by the illustrious speakers you have had in the past. At the Milton address given on your 75th Anniversary in 1985 Sir Garfield Todd told Milton High School pupils that they should aspire to address the school at the age of 65. I am only 36 so am doubly honoured to be invited to address you at such a tender age. Perhaps Mr Mandikate made a mistake and presumed that my baldness indicated sufficient old age to merit this invitation.
Milton High School was established in the same year as the formation of the South African Union in 1910. In preparing this address I was reminded of the wonderful inauguration of President Mandela at the Union Buildings in Pretoria in April this year. It was entirely appropriate that the inauguration of such a great man and such a significant occasion should have taken place at such a gracious and historic location. President Mandela’s coming to power and South Africa’s transformation over the last few years has been almost miraculous and it stands in such vivid contrast to the gloom that overshadows most of the rest of Africa. Tonight I would like us to look at Africa’s woes and to consider some of the lessons I believe we can learn from our Southern neighbour this evening and from President Mandela himself.
Africa is at a cross-roads. The last bastion of colonialism and racism in Africa has gone with the demise of apartheid ruled South Africa. No longer does Africa have a common enemy; no longer does it have any form of scapegoat. It now has to face its own problems squarely and we as Africans have a choice: either we can recognise our abundant potential and progress or we can continue our gradual slide into oblivion.
With a few exceptions Africa is in a dreadful mess. The frightening images of Rwanda and Zaire over the past few weeks and days merely highlight a malaise that affects the majority of African states. The list of catastrophe in Africa is long: Somalia, Liberia, Sudan, Angola, Mozambique and Ethiopia have been the focus of some of the worst human suffering the world has seen. And yet the list does not end there. Just this past weekend we heard of another coup d’eta in the Gambia. That shocked me to the core because I had always perceived Gambia as being one of Africa’s more enlightened and stable states.
One is numbed by Africa. Here is a continent of unsurpassed natural resources, blessed with wonderful climates, bountiful land, strong and able people. And yet it is this continent that is the basket case of the world. As we analyse the trouble spots of Africa over the last five years or so it is important that we understand the root causes of the chaos. Those who cannot learn from history are destined to re-live it. Many of the countries which are stricken by conflict were, a few years ago, on the surface at least, stable societies. Liberia is an appropriate example. As recently as 1987 the then US Secretary of State, George Schultz, passed through Monrovia and praised the late President Doe’s Government for what he called “genuine progress” towards democracy. At the same time the then US Assistant Secretary of State, Chester Crocker issued a series of unforgettable statements about “positive aspects” of a rigged election. It shocked the world when an all-out civil war erupted in 1990.
And yet the signs were there for all to see. The foundations of disaster were laid as far back as the 1960’s during the rule of President William V.S. Tubman. In the December 1992 edition of the American magazine, The Atlantic, Bill Berkely wrote:
“the combination of graft and repression reached its peak during his rule. He donated one per cent of the national budget to the upkeep of his presidential perks. He created a personality cult based on an elaborate network of kinship and patronage, personal loyalty, the manipulation and co-option of tribal chiefs – and force. He built an extensive secret – police network, and laid the foundations for much of what was to come: an individual autocracy rooted in weak institutions and contempt for the rule of law”.
We need to think about those words and see whether they have application in other African countries. Invariably whenever they have had application those countries have become susceptible to the same horrors which erupted in Liberia. It is also important to remember that the horrors in Liberia only erupted in 1990, some 19 years after Tubman left office. The volatile ingredients of civil war, once mixed, can simmer for years before exploding with an all consuming fire.
Gambia has become another example of this. Just yesterday I listened to a BBC interview with the coup leader Lieutenant Yahah Jammeh. Jammeh said that Sir Dawda Gawara and his predecessors had ruled uninterrupted for 30 years and had developed a thoroughly corrupt regime. He said a further interesting thing which was an echo of Liberia: that whilst the outside world had perceived Gambia as a progressive democracy it was in fact a repressive corrupt regime. And so yet again, democracy in Africa has been retarded. And we are all affected because with every coup d’eta the image of Africa as a no-hope case is strengthened in the eyes of the rest of the world.
Bernard Levin, writing in the Times earlier this year, asks the question “Why has Africa, with all its massive potential failed its people?”. It is a question all of us, as Africans, need to ask. I think that the answer is found in some old wisdom. In Isaiah 58 we read of a nation in a similar predicament to ourselves as Africans today. I do not have time to read it all to you tonight but I commend it to you.
In verse 2 we read:
“for day after day they seek me out; they seem eager to know my ways, as if they were a nation that does what is right and has not forsaken the commands of its God. They ask me for just decision.”
In verse 3 the same people say:
“why have we humbled ourselves, and you have not noticed”.
Africa is a religious continent. Its people have been crying out for many years. We all at times feel as if God has not heard our supplications.
In verses 3 to 5 God turns to the nation of Israelites and says in effect that he will not listen to the nation because their fasting, their processes of humbling only result in people doing as they please. Their fasting ends in quarrelling and strife. He says that they cannot expect their voice to be heard on high as long as they fast as they do.
In verses 6 to 10 God gives the Israelites advice as to what has to happen before he will listen to their pleas. They are told to “loose the chains of injustice, to “untie the cords of the yoke” to “set the oppressed free” to “do away with the yoke of oppression and with the pointing finger and malicious talk”. In other words he tells the nation that they can pray and fast and humble themselves as much as they like but unless they as a nation move to establish a just order he as God Almighty will not have compassion for their plight. The chapter ends with wonderful promises contained in verses 9 through to 14. It gives the promise that if the chains of injustice are loosened then light will break forth like the dawn, healing will quickly appear, God will satisfy our needs in a sun scorched land, the people will rebuild ancient ruins, they will be called Repairer of Broken Walls, Restorer of streets with dwellings and we will find our joy.
I believe the answer to Africa’s woes is contained in this very chapter. The answer in modern worldly terms is as follows: Africa cannot expect to see light, a new dawn and healing until some of the fundamental chains of injustice and yokes of oppression still existent in Africa have been shattered.
What are these chains and yokes in Africa today? I think a clue is given in the Liberian situation. As I said earlier it had a Government described as “an individual autocracy rooted in weak institutions and contempt for the rule of law”.
That description is common of many countries throughout Africa. We can identify three chains or yokes in that description.
The first chain or yoke is autocracy. Autocracy is defined variably as self-sustained power or absolute government. An autocrat is a leader with uncontrolled authority. Is it not true that Africa is characterised by governments whose power is self-sustained by leaders who have been in power for decades and whose rule is absolute and unchecked? This is not to say that the ruler has acted unconstitutionally in the sense that the constitution of the country has been breached.
Sadly much of the rule in Africa, is constitutional in the sense that the respective countries constitutions allow this absolute, unchecked power.
Zimbabwe’s constitution is a case of point. It was flawed from the very beginning but since 1980 it has been lawfully amended:
– concentrating extensive powers in an Executive President;
– abolishing an arm of the legislature, namely the Senate;
– giving the Executive President the power to appoint people to the legislature.
These amendments and others have had the effect of vesting enormous power in the hands of a few people whose rule is largely absolute and unchecked.
Writing in the federalist papers in 1787 one of the fathers of the American constitution, James Madison wrote:
“but the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resisting encroachments of the others. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections
of human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls of government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions”.
Madison believed that man cannot be trusted with power. He believed that because man could not be trusted one should not vest unchecked power in one department of government. If democracy was to work there should be checks on the power of anyone in control of any aspect of government.
To bring my talk back full circle I believe we have much to learn from the South African constitution which was greatly influenced by Nelson Mandela and the ANC team of constitutional lawyers such as Albie Sachs, Nic Haysom and Arthur Chaskalson. The new South Africa Constitution is framed in such a way that there will be a variety of checks in the power of central government. The Constitution creates the office of President, Senate and House of Assembly. The fundamental rights contained in the Constitution are entrenched and will override the will of Parliament as expressed in legislation. The South African courts, and especially the Constitutional Court, will be in effect a fourth chamber (aside from the President, Senate and House of Assembly), a negative legislature. In essence the principle of Parliamentary sovereignty has been abandoned in South Africa. In other words Parliament is no longer all powerful and is subject to scrutiny by the Constitutional Court. South Africans have heeded the warnings of James Madison. The Constitution does not allow for the encroachment of autocracy in South Africa. South Africans are clearly determined that this is one chain that will not be able to strangle the process of bringing about of a new democracy, of a new bright dawn and of healing in South Africa.
The second chain or yoke is the presence of weak institutions in any nation. Perhaps the most powerful institution which acts as a check on power, which prevents the establishment of an autocracy, is the media. Conversely, as happened in Liberia, autocracies are often built on the foundation of a weak subservient media. This is especially so of the electronic media which in most African countries is rigidly controlled by Government. Radio is by far the most powerful medium in under-developed African countries and is many governments’ ultimate propaganda tool. A tightly controlled broadcasting service is almost automatically a weak one; unable to expose corruption and abuse of power. Conversely an independent bold broadcasting service is a corrupt Government’s nemesis.
Most African countries are characterised by a weak subservient broadcasting service. Zimbabwe’s broadcasting service is no exception. We are still afflicted by a colonial law: Section 27 of the Broadcasting Act, Chapter 248 rules that “no person other than the Zimbabwe Broadcasting Corporation shall carry on a broadcasting service in Zimbabwe”. The result has been a narrow-minded service which has slavishly served the interests of the two political parties which have governed this country for the last thirty years. As a result the ZBC, and the RBC before it, has, for the last thirty years, been a propaganda arm of government; a weak institution which has only given one side of every story and in so doing has fostered the emergence of two different autocracies over the last thirty years.
In contrast the new South African Constitution will not allow this situation to develop. Section 15 of the Bill of Rights reads:
(1) “every person shall have the right to freedom of speech and expression, which shall include freedom of the press and other media;
(2) all media financed by or under the control of the state shall be regulated in a manner which ensures impartiality and the expression of a diversity of opinion”.
Subsection 2 goes a step further than the provision contained in two recently enacted African Constitutions, namely the Ghanian Constitution and the Namibian Constitution. Both of those constitutions all persons shall have the right to “freedom of speech and expression, which shall include freedom of the press and other media”. Those provisions on the face of it ensure that the media will be opened to all but do not expressly say that state funded broadcasting must be fair. The South African Constitution puts the issue beyond doubt. The electronic media in South Africa, whether funded or controlled by Government or not is destined to be a strong institution. The Constitution obliges it to ensure that all points of view are covered and in doing so State broadcasting services will not be allowed to become a propaganda tool.
The third yoke or chain of oppression is found in contempt for the rule of law. Liberia like most African countries had a constitution. It had a body of criminal law which in theory applied to all people. The doctrine of the rule of law holds that predetermined laws of the country must be applied equally to all. The rule of law is held in contempt when those laws are applied to some people but not to others. The rule of law is also held in contempt when fundamental human rights provisions are arbitrarily changed or watered down to suit the whim of government. Africa is blighted by these types of contempt. Throughout Africa powerful politicians and their supporters are often not charged with criminal offences they have committed; others are pardoned. Internationally accepted fundamental human rights contained in constitutional provisions are changed and watered down. Zimbabwe is not immune to this type of contempt; our Declaration of Rights has been consistently watered down so much so that some of the rights contained therein are now virtually meaningless. Our laws have been applied unfairly and in a discriminatory fashion. Court orders have been wilfully disobeyed by Government. Government operatives, guilty of serious crimes, have been pardoned. All of this constitutes contempt for the rule of law.
President Mandela and those South Africans responsible for the drafting of its new Constitution appear to have been alert to this problem. They have fashioned their Constitution in such a way as to give the new Constitutional Court immense powers to combat contempt for the rule of law. Firstly, the fundamental rights contained in Chapter 3 of the South African Constitution are entrenched and cannot be changed or watered down in any way. Secondly, Section 7 of the Constitution binds all legislative and Executive organs of State to respect those fundamental rights. The fundamental rights apply to all administrative decisions and, most importantly, administrative Acts. The Constitutional Court is given the power to strike down any law, decision or Act which it feels violates the Constitution. Accordingly any government action in contempt of the rule of law will be met with the wrath of the Constitutional Court.
The Ghanian Constitution, which came into force on the 7th of January 1993, is equally fascinating in this regard. In terms of Section 2 (2) the Supreme Court has authority to make orders giving effect to the Declaration of Rights. In terms of Section 2 (4) any failure to obey and to carry out the terms of an order made by the Supreme Court constitutes “a high crime” and shall, in the case of a President or the Vice-President, constitute a ground for removal from office. In other words if the President or Vice-President of Ghana is responsible for holding the rule of law in contempt he can be removed from office.
The point of my talk tonight is this: Africa is in a mess. Three countries in Africa, South Africa, Namibia and Ghana have pointed the way forward for Africa. South Africans, and President Mandela and the ANC in particular, have identified that the attainment of a new dawn, of healing, of the process of reconstruction and of making Africa proud again begins with a new Constitution. A new strong Constitution is obviously just the start. On it must be built strong institutions and a deep respect for the rule of law. Constitutions, as has often been argued are just pieces of paper which can be torn apart. This has certainly been so in Africa in the past where both the letter and spirit of Constitutions have been wantonly breached by a variety of African governments. But in the present age, in the post-cold war situation we find ourselves in, Constitutions are now harder to ignore than they were in the past. The World Bank and IMF link aid to respect for Constitutionality and human rights observance. Many governments in Africa hide behind a facade of acting in terms of their Constitutions. “We have acted Constitutionally” they say whilst perpetrating serious violations of human rights. If we change and strengthen African Constitutions those governments will no longer be able to hide behind that facade.
Where does all of this leave us as Zimbabweans? Where does this leave you young men on the threshold of your careers? I believe that more than anything else in Zimbabwe today we need a new Constitution in line with the South African, Namibian and Ghanian Constitutions. A Constitution which will act to prevent Zimbabwe sliding down the same slippery slope as Liberia did. A Constitution which will not allow an individual autocracy to emerge and consolidate. A Constitution which strengthens institutions which in themselves will act as a check on the abuse of power. A Constitution which will prevent Government acting in contempt of the rule of law.
This of course is lofty talk and you as young men here tonight may be asking what you can do about it. You are not lawyers you have little knowledge of what should be in a Constitution. However you as young men have the world at your feet. You have received a good education from a great school. You have a head start over your fellow young men in Zimbabwe. Zimbabwe among the nations of Africa is in a similar position – it is in better shape than most of Africa. We have not slipped as far down the slope as others. But both you as individuals and Zimbabwe are at a cross-roads. You as an individual have a choice: you can accept the world and your country as you find it or you can rectify it.
Martin Luther King once said:
“The hope of the world is still in dedicated minorities. The trail blazers’ in human, academic, scientific and religious freedom have always been in the minority. It will take such a small committed minority to work unrelentingly to win the uncommitted majority. Such a group may well transform America’s greatest dilemma into her most glorious opportunity”.
The challenge is yours. Zimbabwe is in a dilemma at present but it has immense potential. If we as individuals work hard we can transform that dilemma into a most glorious opportunity for Zimbabwe. We need to dream a bit. I believe that Zimbabwe has the potential to become one of the great nations of the world; all it needs is your commitment.
I want to leave you with a story which some of you may have heard before. It concerns an incident involving my professor of Roman Law at University, an austere Austrian law professor called Schiller. Roman Law was the course used by the University to weed out two thirds of potential lawyers in their second year. In the first week of Roman Law Professor Schiller gave us a vast number of assignments. Once of my colleagues had the misfortune to ask whether the assignments were compulsory. In reply Professor Schiller said “no the assignments are not compulsory, but there again breathing is not compulsory. If you do not breathe you die, if you do not do my assignments you fail!”
It is not compulsory for you to be a trail-blazer. You can go and live a quiet life. But I believe that unless we act to bring about a new Constitution all that we hold dear in this country could be lost. I will end with another quote from one of my heroes Martin Luther King:
“human progress is neither automatic nor inevitable. Even a superficial look at history reveals that no social advance rolls in on the wheels of inevitability. Every step towards the goal of justice requires sacrifice, suffering and struggle; tireless exertions and passionate concern of dedicated individuals. Without persistent effort, time itself becomes an ally of the insurgent and primitive forces of irrational emotionalism and social destruction. This is no time for apathy or complacency. This is a time for vigorous and positive action”.