African Renaissance Podcast
The African Renaissance Podcast hosted by Dr Mbuyiseni Ndlozi provides a stage for vital conversations with actors working to improve the lives of African people. It provides sharp analysis & critique of Africa's social, political & economic history.
African Renaissance Podcast
Episode 42 – Former Justice Edwin Cameron: Decriminalising Drugs, Land Reform And SA Constitution
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In conversation with former Constitutional Court Justice Edwin Cameron on justice, crime, prisons, drugs, democracy and the future of South Africa.
Justice Cameron explains his argument for treating drug dependency primarily as a public health challenge rather than relying solely on criminal punishment. They explore the difference between decriminalisation and legalisation, the relationship between drug criminalisation and organised crime, and the difficult questions surrounding alcohol, addiction and public policy.
When you think of justice you see that space. I haven't interrogated in any way uh if it makes people more in ownership of it as the court of the people.
SPEAKER_00I don't know. It's supposed to do that, but what you're saying is actually very interesting to a debate we're gonna be having next month, which is about the form and structure of the constitutional court. And I think it'll be a terrible error to break it down into panels, because you should have what they call an on bond court. We can talk about this too if you like. But what you're saying about the authority of the court, the intimidation of it, the impression of it, the uh what what constitutes its authority? It's not the pillars, you know, like the US.
Dr Mbuyiseni NdloziThe Greek Greco-Roman architecture.
SPEAKER_00No. Yeah, it's not that. So where does it come from? And that that's an interesting question.
Dr Mbuyiseni NdloziIs is it um is it not they say we have started, so it doesn't matter. There's is it not a mistake to try and strip the cord of that particular power to make us feel um in reverence. Uh because what what exactly was that architect supposed to because it's as if there's a contradiction between me feeling that it is the court of the people, that for it to feel like that, it shouldn't be an intimidating space that demands reverence.
SPEAKER_00But that's what the architect architects try to achieve, which was to have a building of beauty, a building of access, a building of openness, of light, of transparency. Do you think that that succeeded?
Dr Mbuyiseni NdloziThat cart isn't Judge, it's firstly it's very cold. Yeah. It's the first thing in the world. You want to get people uncomfortable, they must enter a cold room.
SPEAKER_00It was designed in Durban, by the way.
Dr Mbuyiseni NdloziYeah. I don't know. Um, and as I I mean, as I said, uh the architecture, I don't think that's where it's at. It nonetheless was a noble. I wouldn't say it wasn't. I think it's still a noble thought to say, what should courts in Africa that emulate the values we we we wanted to represent? I mean, Ubuntu dignity, those ones that are sort of unique to the development of the constitutional uh paradigm, like in South Africa. What would that code look like? It's an interesting and I think a legitimate pursuit. But to think you're gonna stretch it to where it is this happy, beautiful place or a place where people don't feel intimidated, I think I don't know that that should be the pursuit. Because even when people are sitting in a kitchen or a dining room in a rondaville, once they say it's a lobola negotiation and they call you, yeah. Uh if your parents enter your room, they sit on the bed and they say, sit down. It changes it. It's us and the space. It's us and the space. I don't want people to lose the reverence for the court.
SPEAKER_00It's an assertion of hierarchy. In the end, you can't avoid that. Yes. You can't avoid and and of power. Hierarchy and power. Yes, yes, yes.
Dr Mbuyiseni NdloziYou you you have an alcoholic. Are we we are we are we are on. Sirius? Of course. I thought we were chatting. Well, we should. That's what we should be doing in podcasts. Podcasts should be chats. Okay. I I thought we were still setting up. No, Judge, we are on. And you see the point. Once I say let's start, you definitely change the posture, like in the court.
SPEAKER_03Yeah.
Dr Mbuyiseni NdloziAnd and the meaning of the space changes. Uh, it's perceived because human beings are cannot be put in a straitjacket categories, I think. Uh, but I did want to say I'll come back to the to the justice and the law. I want to start with drugs. You are this constitutional court, justice, former justice of the constitutional court, going around telling us let's make drugs free. So, can you take us through that in as patient a way as possible? Why are you calling for the decriminalization uh of drugs?
SPEAKER_00And I mean like heroin, mandrex, now worse, fentanyl. Fentanyl. Fentanyl, which is trying to get to us. I think we've got to go back to the criminal law and undesirable substances in our community, like alcohol. They tried with alcohol in the United States for 10 or 12 years to prohibit it, the period of prohibition of all alcohol consumption, sale distribution, and it was a catastrophe. What it did is it let the mafia not only into the police forces, the businesses, but also into the judiciary, administration of justice. So the first step is that using the criminal law to clamp down on something that is widespread and that is harmful, alcohol is harmful, but that people crave is a very dangerous thing and boomerangs. That's what happened with prohibition in America. So the second thing is that from prohibition, they realized in America that prohibition was a disaster. So they rescinded the constitutional amendment in the early 1930s, almost a hundred years ago. But a new prohibition started, which was the war on drug dependency and drug use. And it's also not just been futile, it's been terribly harmful. It has entered the United States system at almost every level of the administration of justice. And the same as here. So we don't say that drugs are a good thing. We say that alcohol, sugar, gambling, all of these aspects are harmful to you personally. They're harmful socially. But do you criminalize the use of sugar? You don't. You use public health interventions, tax interventions to curb the use of sugar. And most importantly, you use public education. So we say that drugs are bad. We're referring to a book that I co-authored with uh Rebecca Gore and Seela Surojpol, which is about prison reform. And we say in the book, and I say it to you now, that if we abolish the criminal prohibitions on drugs, the terrible, murderous slaughter in the Cape Flats townships would diminish. I commit myself to that. Why? Because criminalizing drug possession, drug distribution, drug use is feeding the gangs, it's empowering the gangs. And the the murders in the Cape Flats right now, which are enormous. If you travel 15 kilometers from Seapoint or from Constantia, you're in the middle of one of the worst murder epidemics in South African history. Those murders are all fueled by criminality. And the power of the gangs depends on criminalization of drugs. So we say turn it around. Discourage drug use, offer public health interventions, clinics. All this money spent futilely on uh on policing can be spent better on public health interventions, education, finding people who are dependent. And by the way, just let me say, you you referred to me being a former constitutional court judge. I've got even better authority. A former president, President Kalema Montlante. He has joined an international group of former presidents who say, stop this war on drugs. It is counterproductive, it is harmful, it is terribly injurious to our whole society, it is futile. So I stand by our premises.
Dr Mbuyiseni NdloziUh I like the comparison, so let's go with it a bit. I'll come to uh the cases where this has worked. Because I think the America example is it's not making sense. One wants to possibly rely on where decriminalization of drugs actually had results. But before I do that, you make the comparison with alcohol as if alcohol is not harmful anymore. We are sitting in one of the most catastrophic countries when it comes to alcohol abuse. Correct. So if alcohol is the comparison, doesn't the argument fall apart immediately?
SPEAKER_00No, because uh I know the damaging effect of alcohol because I grew up with a catastrophically alcohol-dependent father who had uh spells of of uh of total drunkenness when he lost his job, he'd sell our family goods. So alcohol is enormously harmful, but we should still allow advertising of it. We should not allow advertising. This isn't me preaching uh uh uh to advertise alcohol is to advertise harm. But we don't criminalize the possession or the use of alcohol. So it is a public harm which should be dealt with in the way that we do. If if my father needed medical help, he needed social help, but wasn't available. He'd come back from the Second World War with his uh alcohol compulsion and dependency. So the comparison with alcohol is is a is a very good one because we the correctly we don't criminalize it because we'd replicate what happened in America nearly 100 years ago. But we should treat it more as a public health issue and not allow advertising. But the advertising lobby of the wine companies, the spirit companies, the uh the the corporations who depend or say they depend on on the sale of alcohol is so powerful that every time they've tried through NedLAC to get uh a uh bill going, a statute going, the companies have thwarted it. So that's that's a battle which we have yet to fight with drugs, which is the the public health route and the interventions, the recognition that this is harmful. You wouldn't advertise fentanyl, you wouldn't advertise heroin. Why do you advertise uh strong liquors? I myself, I drink a very occasional whiskey. I like a glass, sometimes two glasses of wine at night. So I'm on the side of allowing some choice, but not propagation of harm.
Dr Mbuyiseni NdloziThe comparison I was drawing to uh judge is if then you add to this scenario decriminalization of drugs, it seems to me that we might lose the battle since we are still already using losing it with crimin like decriminalization of alcohol. So you're gonna have taverns of Nyaobe consumers because it's legal. That's what the image of people that that comes to mind. That is that what's now gonna happen? Is it people will be you know injecting themselves in the streets with uh this and that? But where it is at the moment, it's uh it's done secretly, it's uh criminal, da-da-da. So if the comparison is like alcohol, it will mean just people are not going to prison. Your prisons are not full of health, um, people who need like proper health intervention, not prison. But in society, you might you might quite just exacerbate that. That's the the if I'm thinking about the harm alcohol is causing now, uh the fights, all the uh courts on Monday, magistracy heightened gender-based violence. We know there's a link between alcohol use and gender-based violence. Yeah, and femicide. Yeah. So I'm saying if that if that's what I'm thinking, how do you how do you help us see the benefit of this decriminalization of drugs if alcohol at its state at the moment is doing the things it's doing to society?
SPEAKER_00It's a comparison of evils. The question is: do you create more evil through criminalization or less evil through decriminalization? We're not talking about legalization, by the way. Alcohol is legal because it's uh regulated. We're not going that far saying legalize drugs, we're saying decriminalize, take away the terrible, blunt instrument of the criminal law. And your question is a good one because your response is intuitively appealing. You're saying, look, you've got alcohol which isn't criminalized, and look at all the harms, how much more harms? But the question isn't uh that isn't the right comparison. You've got to say, what are the harms we are inflicting by misusing the criminal law? And the harms are 60, 70 murders per 100,000 people in the Cape Flats. Almost unimaginable levels of murder uh in the Cape Flats. Uh the numbers of people killed in a day, in a week, in a month in the Cape Flats, those are the harms. And I'm saying, I'm saying with with hope, but also with near certainty, that the levels of violence would come down when you tackle the gangs who depend on criminalization. Why do the gangs in the Cape Flats depend on criminalization of drugs? Because it suits them. It gives them the control, it gives them the in with the policemen, the policemen on the beat, the the higher-up uh police officers. All of that comes from criminalization, and we're saying take that away. Okay. Last bit.
Dr Mbuyiseni NdloziJust for the basic we send in clause, who is not a legal mind. When you say something is not legalized, but we we can treat it still as something that is not legal, but we must not criminalize it. Yeah. Just in plain English. What does that mean? Because all of us assume illegal things must lead or must must mean one goes to jail. Yes. So what do you really mean there that take away the criminal criminalization, legal instruments?
SPEAKER_00You can still say that drugs should not be used, should not be distributed. The question is, how do you enforce that? We're saying that the use of the criminal law to enforce that is heavy-handed, misplaced. It's a bludgeon to hit uh an insect. We've got comparisons. You you you you asked about comparisons. Portugal, for example, has decriminalized but not legalized. Legalized says you can use, you can set up a shop, you can uh uh use your dispensary as as you were saying earlier in your intuitive question to me. You were saying, are you going to have an Iope tavern in Deepcliffe or in Santon? So that is that is legalization when you're saying it's fine for you to trade, it's fine for you to advertise subject to regulation. We're saying only take away the criminal law. Still, you can regulate drugs, make uh uh possession of them or distribution of them, especially the drugs that you mentioned, heroin and fentanyl. Fentanyl, we we we're waiting for the epidemic. It's a terribly, terribly harmful drug. We're saying that we can better deal with it when there aren't criminal penalties that are facilitating the drugs. Okay.
Dr Mbuyiseni NdloziUh take me through the cases then, because there's a couple of them, where this worked. What do the regulations look like?
SPEAKER_00The regulations in Portugal uh I don't know of a country where drugs are legalized. I don't know of a state. Oregon, Washington state, in in the United States, uh uh Portugal, uh some parts of the Netherlands have decriminalized drugs. I personally sitting here can't give you an instance of where uh drugs are being fully legalized.
Dr Mbuyiseni NdloziOkay. So this is working with the scientific proof in relation, for instance, to uh to alcohol that I'm trying to sell the point for you. Uh because uh examples are good. Examples are good. What does that world look like where I no longer go to prison because I have uh Nyaobe in my hand or I'm selling it? Uh if I'm being regulated, what would that look like if it's just regulation and not criminalization?
SPEAKER_03Yeah.
SPEAKER_00Well, let's take the Dacha case, for example. In 2017, Judge Dennis Davis in the Cape High Court struck down the criminal prohibition on possession of small amounts of DACA. It came to the Constitutional Court, and Chief Justice, then Deputy Chief Justice Raymond Zondo, wrote a judgment that all of us concurred in. It was one of the last judgments in my last couple of years in the constitutional court that confirmed that to criminalize the possession and use of small amounts of DACA for your own personal use is no longer criminal. So DACA is not legalized, it's only exempt from criminal uh uh uh prosecution in small amounts for personal use. So it's a very circumscribed. And regulation and uh regulation says that you can do that. You don't have to go all the extent. Alcohol is legal. Spirits, all the the strong spirits, wines, beers, it's legal. They they they are uh are legalized. Uh they've never been criminalized except for black people, of course. We've got a history of useless criminalization in South Africa on a racial basis under apartheid. It was criminalized to sell alcohol in in black townships. So uh we we've got that history, we know what it produced, which was ineffectual and counterproductive. So that's what we're saying. I and I I I I yeah. Yeah.
Dr Mbuyiseni NdloziAnd the money that um so if if uh drugs are legal, the drug law drug lords don't have to decriminalized if drugs are. Decriminalized, yeah. Yeah, drug lords don't have to k be carrying guns and killing in order to distribute them. In order to control.
SPEAKER_00In order to control the trade and to control the money flows. So suddenly, when drugs are decriminalized, there's a different pattern of distribution. There's a different You can even find it in a chemist. Yeah. Conceivably Panado. Conceivably. I I I I haven't yet imagined would you have pharmacies? Would you have like we've got now, we've got Daha stores. Yeah.
Dr Mbuyiseni NdloziBecause that's that's that's the first thing that will happen is that people are gonna open stores because you are told you can only sell in these quantities, you can sell to children, you can sell on a Sunday, whatever the case might be.
SPEAKER_00That's called regulation. Regulations, yeah. Once you decriminalize, you regulate.
Dr Mbuyiseni NdloziAnd then the drug lords lose power. They lose power almost immediately. I I can see that. I can see that. And suddenly the way organized drug uh marijuana distributors, that that that sheep say okay. I I do want to move swiftly in uh to prisons in that way. And um it's very scary when you listen to the story of prisons in South Africa uh since Tabo Pesta, but also uh General Mukhanazy. Um I wonder if I could ask the judge to firstly paint this continuity of crime. How are people able in our prisons today to run affairs outside? Uh to have cell phones, to I was wondering the other day, you know, Cat Matlala is uh in some maximum security prison, but when he comes to court, he's clean, he's sharp with a tie and all those things. I was thinking, you can't say he's from a prison, you know, it doesn't give the image of a prison as this place of absolute regulation and correction and deprivation and deprivation. But then you hear they've got cell phones, they've got uh jewellery, they've got all of this. What in South Africa is at the core of that brokenness?
SPEAKER_00I want to pick up a word you use, which I like, continuity. And I want to make a preliminary point, which is that under apartheid, the prison system imprisoned large numbers of less resource black men, poor black men, if I don't use the more politically comfortable language of resource, under resource, less resource, poor black men, poor black men, poor, poor black colored men, overwhelmingly. We still do the same. The democratic state has not changed the demography of imprisonment in our country. So that's a continuity. But the continuity that you were referring to, which is which is what I want to come back to now, it's we say lock them up and throw away the key. Because we think of prisons as being enclosed entities without permeability, but they they're not like that. Prisons are permeable. People come and work every day, people are released or rearrested, especially amongst uh awaiting trial prisoners. And more than one-third of our prisoners are awaiting trial. About 60,000 out of 160,000 are awaiting trial. They haven't been sentenced, they haven't been convicted. So they are moving in and out all the time. The third factor which gives rise to the continuity in the sense that you asked about it, is personnel. We know how you get drugs in prison. We know how you get cell phones in prison. We know how you get all sorts of contraband, even weapons in prison. It's through the personnel. And there have been some highly publicized cases just in the last few days of where personnel have been caught with huge amounts of daha, large numbers of cell phones. And why is is is that happening? Because the gangs are powerful in the prisons, the gangs are powerful both inside and outside. And uh Jacques Poe is writing a book at the moment, and he came to interview me about some aspects of it. He has followed uh a particular prisoner uh and uh he has documented the number of murders, the number of calls, tens of thousands of calls that that particular prisoner has made from inside prisons. So there is strong suspicion that the murder of a prosecute in Kabeja was coordinated from within St. Auburn's prison. So it's a myth that prisons are insulated, that prisons are hermetically sealed from the outside in terms of infection during COVID, HIV AIDS, guns, drugs, uh uh uh cell phones, rape. Of course. Of course. How do we reform rapists when they are sent to prison and either commit rape within prison or are subjected to rape in prison? We know that sexual activity in all prisons, when you have any accumulation of males self-identifying as opposite sex-oriented, nevertheless, when you force them into confined spaces involuntarily together, sexual activity occurs. And in our prison system, the gang culture encourages vaifies, uh, the the receptive partner in in a male-to-male interaction and and and non-vaifis. So all of that happens, and it it's it's not a case of prisons being a different place from society. They connected into group. So what do we do?
Dr Mbuyiseni NdloziWhat happens then to fix uh at least to get some kind of benefit out of uh not just uh you know from a moral point of view, but uh there are a lot of funds that are being spent. You just look complicit.
SPEAKER_0034 billion is the is the prison's uh annual budget. We we in in our book, which is about prisons reform, we go back a few steps. We say you've got to fix the criminal justice system. We say that the prison system has produced a grotesque accumulation of people serving overlong sentences which are futile. So let us give you an example of murder. We've got in 1994, we had about 500 people serving sentences of life imprisonment. Then, within the first 10 years of our democracy, we made uh both rape and murder and a range of other offenses, compulsory life sentences. We now have 20,000 people serving sentences of life in our prisons. So we say go back, you the the the the imposition of mandatory sentences hasn't stopped crime. We took a figure, we took the numbers of murders committed over a three-year period, and we took the number of convictions for murder over that same period. It's a rough calculation, it's not scientific. 11%. You have got an 89% of getting away with a murder. Anyone listening to our podcast or viewing us now, your chances of being apprehended for a murder are around about 10% of being apprehended and convicted. So these long sentences haven't done us any good. We say rethink them, but we say rethink them in conjunction with effective crime enforcement. We say that starts with crime intelligence. You've got to have that's why the collapse of crime intelligence, the infighting, why crime intelligence was so useless at the time of the organized uprising, the insurrection of 2021, where we lost uh over 300 lives, billions of RANs to our damage to our economy. So we're saying start with crime intelligence. If you've got effective crime intelligence, you will be able to counter uh ATM bombings, coercion networks, the building construction networks, kidnappings, copper cable thefts, thefts of railway lines. Uh we say there's a whole range of crimes, uh uh cash and transit heists, which can be effectively infiltrated by an effective crime intelligence network, because you find out where is is all the the uh the uh the scrap metal going. It's not difficult. You know, if you uh appoint a competent police officer to crime intelligence in charge of scrap metal networks in Johannesburg or in the Joe Burg Metro, you'd be able to deal with it much more effectively. So that is the way to countercrime. It's no quick solution. We thought in our new democracy that long sentences, compulsory sentences, lock them up and throw away the key were going to keep us safe, and it hasn't. What did happen is that the murder rate, the rate of violent crime from 1994 came down until 2011. And in 2011, former President Jacob Zuma appointed a criminal, Mr. Richard and Blooney, to head crime intelligence. And 2011 is now how many years ago? Is it 15 years ago? It's been a catastrophe. Yeah. It's been a catastrophe. The destruction of crime intelligence uh has been a catastrophe. The murder rates started going up from 2011. Former President Zuma destroyed crime intelligence. He tried to destroy the uh the National Prosecuting Authority, he tried to destroy the police through incompetent and often corrupt appointments. So those can all be fixed. That's the thing about our country: that there is a remedy for every single of our ills. We have got the people, we've got the resources, we've got the strengths, we've got the resilience, we've got the educational system, we've got all the skills to remedy everything. Even our soccer performance we can remedy.
Dr Mbuyiseni NdloziBut that's serious. I hear that because I almost thought you might uh get to the conclusion that maybe we need a new constitution. What would you say there are strong voices to that effect? Yeah. The true problem and um the idea really here is to the much more substantial questions now of subsistence. Uh the post-democratic state hasn't done so well in reordering property relations. Uh the transformation of the economic structures, the material conditions on the ground. Material conditions on the ground, yes. So the reconciliation of people with the means of subsistence, water, electricity, uh food and health care and education, yes. Um has is this a legitimate criticism of the constitution? This failure for economics to be able to be turned around.
SPEAKER_00The premise is right that we have failed. We have not done enough. That premise is correct because what we have done is we've created a super elite, predominantly black. We've created a middle class, which also now is overwhelmingly black African. There's still a disproportion of whites, colors, and Indians. It's about 70-30, depending on how you define your middle class. But nevertheless, we've created that and we've left the uh marginalized and the under-resourced behind. Not entirely. The grant system is vital. We distribute an enormous portion of our budget, I don't know what it is, maybe 18% on the grant system, which I believe is indispensable. But I want to tell an anecdote. Just a month or two ago, I was at the Witz Law faculty, and we had a debate about the constitution, which was an important debate, and there were many powerful viewpoints expressed. And at the end, a young law student read out a poem to Mr. Mandela, and the refrain of the poem every four or five lines, and it was a long poem, was Mandela, you lied. Now, I didn't say so at the time, but it it's not a fair historical reflection because Mandela didn't lie. He promised nothing. He promised us our own power, which apartheid tried to take away from our people, and he promised us a process and he promised us a structure. The structure is the constitution, the structure is a powerful one. It says equality. We haven't begun to explore. Our equality clause is more radical than the equality clause by far of the United States, which is almost a nominal equality. It's by far more powerful than the equality clause of Canada. It says that all our people must have equal benefit of the rights. We haven't started achieving that. We haven't effectively given people the material conditions of life that you mentioned food, water, hospital care, emergency care, education. So that was what Mandela left to us, and we the elite. I joined the elite under apartheid. At the end of 1994, President Mandela appointed me a judge. I went from the High Court to the Appeal Court to the Constitutional Court. So I'm part of that elite that benefited from democracy, and we have not done enough. We have sat on our laurels, we have reveled in our own comforts, and we have put ourselves in the position where the questions you raised are legitimate questions. What has democracy done for me? And in many, many cases, with perhaps 33 or 40 percent of our country, we have kids starving, we have kids falling into pit latrines, we have schools uh uh uh which which aren't given elementary uh construction and and and resources, and we have failed those people, the the the the the the marginalized and the less resourced. So there's a lot more that we can do, but changing the constitution is not something that we need to do.
Dr Mbuyiseni NdloziWhat would um in any way I mean um the only change I have come across and uh you may add if there are more, what what have been the demands on changing the constitution which for you uh not only have been conversed with you but that you think legitimately point to a proper solution because there is this movement, there is this conversation where maybe we need to change uh Mandela's constitution. So I'll just name the first one and I hope you'll add. But the first big one is the property clause. Yes. Um and I'm holding my feet because I was one of them. But with the pop with the property clause, you know, we all agreed there is a land question that needs to be addressed. People say section 25 carries the tools, and we said, well, just make it explicit that when the state can, in the interest of land reform, you know, expropriate without compensation. That was the big one that used to be discussed. I don't think it's being discussed that much anymore. But I think firstly, would that not be some sense of power that might change the fortunes of the strata you are describing at the bottom of society? And maybe we can then entertain other proposals of what to change in the constitution, if any.
SPEAKER_00I'm with Tembegan Lukai Tobi on this one that section 25 does not need to be changed, it's all there. It allows for nil compensation in an appropriate case. It says appropriate compensation. It doesn't say there will be compensation. What is appropriate? It might be uh uh depending on the circumstances and it empowers the courts. So every person, whether you in an informal settlement or you own a mansion in Santon, you are protected by Section 25's uh uh reliance on the courts that says you you you you you may not be uh evicted, you may not be deprived of your property. And so I think those are important guarantees for all of us in the country. The question that I think the constitutional skeptics are asking is do we need a constitution at all? Oh God. Some people uh are advocating that. You've you've had people that are decrying the constitution. This is an indigenous constitution. It's a constitution made by the first democratic parliament of South Africa, the Constituent Assembly. So the allegation that it comes from outer space or from the planet Neptune is factually wrong. It's historically wrong. And the the important thing about our constitution is that I believe that it offers everyone something. It offers a huge proportion of our population not enough. It hasn't realized people's entitlements to dignified conditions of life, it hasn't realized equality, it hasn't realized a number of gender, gender-based violence, people, women's safety. But it does offer something of value to everyone. And the important thing is that we've got alternatives. We've got alternatives. The one alternative is President Paul Kagami in Rwanda, who gets 98% of the vote. You chuckle, but he gets 98% of the vote. And his opponents, miraculously enough, even in Joe Berg's Michelangelo Hotel or in Cape Town's Mulleton uh suburb, they they are murdered. So uh there's power there somewhere. I'm not saying that he's done it himself, but we've got alternatives throughout Africa and uh Asia and Europe. We've got autocratic illiberal governments. There was one in Hungary until recently, even within the European Union. But what are those alternatives bring us that the constitution doesn't already offer? What we lack is leadership and what people are saying when they want autocracy, because I think a big proportion of people listening to us tonight or today will say we want leadership. Yes, the constitution presupposes leadership. And I I personally am entitled to say I think that we've lacked that leadership. We haven't got the leadership against crime, against corruption, against uh economic progress, against uh uh uh uh land injustice. Can I tell the story of the very last judgment that I delivered on the Constitutional Court bench? It was August 2019. It was a Mandela statute from 1998 that spoke about labor tenants. Oh, yeah. If you worked on a farm, most of the farms at that point were owned by white people. Most, almost all the labor tenants were black people. You live on a farm, you cultivate a patch of vegetables, you've got some uh a stock, some animals, chickens or or goats or or or livestock. And the statute said that you become entitled to your portion of that land. You just have to put in an application. And if the farmer contests your entitlement to get that piece of land where you and your family live, where you and your livestock graze, where you have planted your crops, not taking away the whole farm, just giving you as a labor tenant an entitlement to ownership of land. Apply if the farmer contests it goes to the land claims court. So tens of thousands of people put in their applications. They were assisted by non-governmental organizations, tens of thousands of applications. What happened? Nothing. Why did nothing happen? Was it the constitution? Was it the law? It was bureaucratic inefficiency, corruption, incompetence, lack of sufficient guidance within the what we did in the constitutional court in that judgment, which was called Mulasi. Mr. Mulasi very sadly died before we gave the judgment. He had a farm which was on a piece of Hilton, a private school, an ultra-elite private school. He didn't get his land, but the court appointed a special master to administer, and the land claims court is still grappling with that order. They're trying to implement it. So that's a long story, but it's a story about the last 32 years that we cannot blame Mandela. We cannot blame the constitution. We must blame ourselves. What have we done? What have our bureaucracy done? What have our leaders done? What have our political parties done? What have our media done? What have our lawyers done? What have our judges done to secure real constitutional fulfillment for everyone in our country?
Dr Mbuyiseni NdloziMaybe, Judge, the last part is the uh conservative white groups that I'd like to talk to you about. Um maybe I'll pose the question as broadly as possible about um Afri Forum's campaign. Um apparently white people are very, very uh scared here in South Africa. I don't know you are white, um, and they they feel there's a genocide such that you know there's a refugee program to the US. That mobilization um what measure would you put to the assault on the constitutional project of nation building in South Africa?
SPEAKER_00I would go back one step and say that Afri Forum is an ethnicist movement, it's directed at white Afrikaners. And I would I I grew up Afrikaans, I'm I'm my first language, my mother tongue is Afrikaans, my secondary and primary language is English, like it is for so many of us. I think your PhD thesis was in English.
SPEAKER_01Yes, of course. So this podcast is in English, exactly. But if not our first language is.
SPEAKER_00So I I would just say a caution about ethnicist movements. And I see that just yesterday, the day before we were recording this podcast, there's been a meeting between March and March, which many people accuse of also being ethnically based and Afri Forum. So I would I would start there by saying that ethnically based movements in our country are a great danger. And as a white person, I'm I'm I'm white, I I I do feel scared because of the levels of crime and the levels of violence and the levels of robbery, but I don't feel scared as a white person. And I think it's a it's a it's a uh uh uh infamous lie that there's a white genocide in s in South Africa. There's legitimate debate about all crime figures, the murder rate, the farm murder rate, uh uh, but it it's quite clear that the white genocide lie, the myth, has been seized upon for domestic white male purposes in the United States outside our country?
Dr Mbuyiseni NdloziWould you would I mean if you had like if you were a patriarch, wife, kill children, and all of that, uh what would have been your message? What what should white people's view of Afroforum really be? If you were to to say I was in the constitutional court and you're talking to your your children, and it's they've got all these feelings. Uh I argue it's terrifying in the townships for township folk. You were talking about the Cape Flats, it's terrifying. So, but we agree. But there seems to be this case that there is nonetheless an experience of this crime from white people racially. And when the mobilization by Afroforum takes root, what would have been your counter argument to your kith and key now? Because we talk differently when it comes to the people that we sort of love. Hypothetically, I mean, at an abstract level, yes, the argument makes sense, but what would have been your counterargument to an African, uh African's mobilization by Afroforum of your family?
SPEAKER_00I I would make an emotional appeal. I think one of the powerful strands, it wasn't necessarily a dominant strand, which is that the Afrikaners feel their own roots in our country. And that they've the this is a dangerous thing for me to say, especially on Dr. Mwishen and Lozzi's podcast. But I think there was an organic connection between whites and blacks, which there isn't, for example, in Palestine, where uh the the the Jewish settlers on the West Bank and the Jewish state has never had that. There are 1.6 million uh Palestinians inside the state of Israel, but there hasn't been the same connection, which is not to deny the depravities and atrocities of apartheid, but you see many families which are uh uh cross-racial families. So it's a complex history, and it's a complex history that is sourced in the fact that the Afrikaners also claim to be rooted in the land. So my emotional appeal is don't throw away your claim to South Africa, your claim to dignity together with everyone else in South Africa in the preamble. You gotta explain a why is that dangerous? It's well it to to go back to saying the organic connection, because I think it is complex. You had a racial hierarchy. I grew up, I benefited from a racial hierarchy. I went to a White Sony school that gave me the big break from from my poverty and my broken family and from the children home I'd attended before. I went to a White Sony university. I went at the time I got the Rhodes Scholarship the year before uh Professor Loisa Nonma, who conferred his PhD on uh your PhD on you. Yes. Well, or was it Professor Adam Habib? No, but you studied under Professor Nonma. Nonma, yeah. Yes.
Dr Mbuyiseni NdloziSo it may have been Habib, because it was 2017, yes. But I'm thinking but he didn't come, so Tawana did. He did write not to come.
SPEAKER_00That's true. Oh, that's right. Yes, I forgot about that. But Luisa Nongma was the first black African road scholar a year or two after I was elected. So I've had all of those privileges. So it's dangerous because it it risks sentimentalizing what was fundamentally a noxious hierarchical relationship. But I'm saying to you, and I'm begging your podcast viewers and listeners, to say that the hierarchical relationships between white and black were much more complex. There was an organic interconnection in many households on many farms, which doesn't detract from the horrors that were committed at others. Agreed.
SPEAKER_01Yes, I mean in any way.
SPEAKER_00I want that recorded. It is.
Dr Mbuyiseni NdloziExcellent. There is something to be said about this is the reason Nelson Mandela. And I thought that was going to be your reference. Yeah. Because that is a very strong view of Madiba. Yeah. Madiba used to say it will be it's much easier with our diversity here. And I'm not saying British South Africans who still hold two passports anyway. But Africaners don't. Africaners don't have I don't. They never have. You don't. I don't. So Madiba to say because they're being Africaner, rest on the premise that uh they've got nowhere else, that this is their rooted here. Exactly. It will be much easier to make a deal with them than it would be correct with a sort of um transition population, which you know uh is always holding a second passport in case things get bad.
SPEAKER_00More like the Kenya Highlands, the the the the white settlement of Kenya, which was a recent part of it.
Dr Mbuyiseni NdloziIsn't Afroforums greatest assault then to that particular identity? Isn't it that what it really did is the greatest self-humiliation? Like they can no longer, in true African terms, they they are shameful, they should be they should be ashamed because the premise of an Africaner is my blood is in this country. And by 94, the commitment was equality, let's build an equal society. But for us, in particular as Africaners, because we have nowhere to go, and the pride of African dome comes out of that. So the entire refugee program, if Mandela woke up, he would be shocked that there are Africaners, you know, who have uh sort of uh shifted that particular premise. So you're calling it um um organic, but but it is a sense, in a way, what Madiba meant uh in a way that uh I don't know, the average Africaner today, do are you saying that is no longer there? Because Afri Forum has over 300,000 members.
SPEAKER_00I wouldn't say that. And and and that's why they're building that university because they rooted here. So I I would say this, I'm not here to speak for Afri Forum, and I don't. But I want to say that they deny that they have ever propagated the white genocide myth. I don't know where they stand on this ludicrous, ludicrous, contemptible Trump program of white resettlement, which is playing to his own uh uh white male. No, Judge, please do.
Dr Mbuyiseni NdloziDoes it does African Forum support that? Please do suspend for a while the genocide question. Okay. Yeah, I mean they deny it, obviously. We know they did. We're talking about the the refugees program. The refugees program. It it it it is something that uh they sort of welcomed.
SPEAKER_00Okay. Well, I think that you make a legitimate point.
Dr Mbuyiseni NdloziAnd facilitate it, as it were, the play.
SPEAKER_00I I didn't follow that. Yeah. Yeah, yeah. Together. I would I would then call that a grave mistake because I think that the people who accepted that bogus uh refugee status, the bogus resettlement because of this white genocide, because that was Trump's premise in granting them. I would say that they were desperately misled. And I personally feel sorry for them because I think they are uprooted, they uh got the adaptations in an alien land, and they're not going to be welcomed as they think they're gonna be welcomed. So my answer to your question is that that was a terrible mistake.
Dr Mbuyiseni NdloziFinal remark it is the anniversary uh of uh South Africa's constitution this year. 1996, it's been 30 years. God, what's your message on on the 30th year of this? Uh Madiba said, let no sun, let the sun not set on so done as a human achievement. Would you still agree with that statement?
SPEAKER_00I don't take any complacency or self-satisfaction in the constitution. I think there's too much work to be done. But my message about the constitution is that we can do the work. Let us take back our power. We've got a thriving country with enormously talented people, people who thirst for the tertiary education that both of us have been privileged to have. But we are in the hands of criminal cartels who are a tiny fractional minority of our country. The constitution offers us a fair basis, a just basis for properly resourced, for properly materialized living. Let's fulfill that. We have got the agency, we've got the rights. Zaki Ahmad and the Treatment Action Campaign tackled an impossibility against the drug companies, against President Mbeki, under whose aegis we we're having this podcast. Because of freedom of speech, because of freedom of assembly, because of freedom of movement, because of access to courts, let us use the constitutional rights that we have without terrorizing other people. You're free to march, you're free to express your views, but don't terrorize mothers and children and communities. So I say that we've got a lot of energy in our country and a lot of very talented people. Let us construct the country that all of us are entitled to. I just want to say I like your swag.
Dr Mbuyiseni NdloziYou like? I like your swag. I'm very glad you do. Yeah. It's it's beautiful, the the pistachio colour. The entire look. You look very constitutional, Judge, today. Thank you. What a pleasure. Thank you for the opportunity, Judge. And uh uh I'm I'm hoping I'm hoping that uh uh very soon, if not in so distant uh a future, we might have an opportunity to lock you uh down even into more detail about the drugs campaign. Yes, please. Uh and I didn't know President Khalema is part uh of it, uh, so he must be next.
SPEAKER_00I have to go and understand uh and and there's a statement that he signed with I think 19 others former heads of of state, and it says that this war on drugs is counterproductive, it is murderous, it is dangerous, it has led us nowhere, it is futile. Let's find other ways. And we say that the public health way, the regulation way, is the healthy way. Thank you.