A little over 25 years ago on 10 December 1996, former President Nelson Mandela signed the Constitution into law, which came into full effect on 7 February 1997. Quite symbolically, this event took place on International Human Rights Day and at the site of the 1960 Sharpeville massacre. The date of the historic Sharpeville massacre, 21 March, has become what we now know as Human Rights Day.

Prior to our Constitution, the concept of human rights was an alien concept in our country's landscape and not everyone's rights were equally guaranteed. The Constitution has changed that significantly. Our Constitution is globally-admired as being progressive and has achieved so much since its inception. This article briefly highlights some of those achievements.

The Bill of Rights

The Bill of Rights is contained in chapter two of our Constitution and it sets out human rights. Human rights are the rights that everyone has, by virtue of being human. Everyone's rights are protected in the Bill of Rights, regardless of their race, gender or religion. Some of the many rights which are guaranteed in the Bill of Rights include the right to life; equality; privacy; freedom of expression and association; political and property rights; housing; healthcare; education; access to information; and access to courts.

Landmark Court cases from the Constitutional Court

The Constitution has been an important tool for people in South Africa to fight for and access the rights contained in the Bill of Rights. Many groups and individuals alike have drawn on and approached the Constitutional Court, which handed down decisions that impacted the lives of not only the specific applicants, but thousands of other South Africans. These decisions have enhanced the quality of our young democracy and one of the notable cases include the following:

S v Makwanyane (1995): This was the very first case which was heard in the then newly-established Constitutional Court. The case dealt with the topic of the death penalty and whether it was consistent with the Bill of Rights. The Constitutional Court unanimously ruled that the death penalty was unconstitutional and ordered the State to stop any further execution of prisoners on death row. It was quite a controversial ruling at the time and the Constitutional Court stated that no one, however abominable their deeds, should be killed.

National Coalition for Gay and Lesbian Equality (1999): Our Constitution is the first in the world to explicitly prohibit unfair discrimination on the basis of sexual orientation. Same-sex relationships were criminalised in the past and continue to be in many other countries today. In this case, the Constitutional Court declared the common law crime of sodomy (which was defined as consensual sexual activities between men) as unconstitutional as it breached the right to equality. Today, members of the LGBTQI+ community enjoy equal rights as everyone else in South Africa due to the right to equality and not to be unfairly discriminated against.

Minister of Health and Others v Treatment Action Campaign (2002): At the height of the AIDS epidemic, large numbers of people died from AIDS-related causes. A new drug, which prevented mother-to-child HIV transmission, was developed and the manufacturers offered to provide it to the South African government free of charge for five years. However, the use of the drug was only limited to two pilot hospitals per province in South Africa. The Constitutional Court ordered the South African government to make the drug available at all public clinics to mothers who requested it. Before this judgment, there were many HIV-related infant deaths and many babies were born HIV positive, despite it being preventable. This judgment changed the landscape of HIV treatment, and today, South Africa has one of the largest, well-administered anti-retroviral therapy (ART) programs globally.

Bhe and Others v Khayelitsha Magistrate and Others (2004): In this matter, the Constitutional Court had to consider the customary rule of male primogeniture, in terms of which only males are allowed to inherit. It was held that this rule discriminated unfairly against women and was therefore unconstitutional. The decision changed how deceased estates are administered to be consistent with the right to equality contained in the Bill of Rights.

Chapter 9 institutions

Chapter nine of the Constitution establishes six independent state institutions to support and protect our hard-won democracy, namely:

>     The Public Protector: to investigate the conduct of state officials on behalf of the public.

>     The South African Human Rights Commission: to promote the protection, development and attainment of human rights.

>     Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.

>     The Commission for Gender Equality: to promote the protection, development and achievement of gender equality.

>     The Auditor-General: to audit how taxpayers' money has been spent by the state and its organs.

>     The Independent Electoral Commission: to manage national, provincial and municipal elections and ensure that these elections are free and fair.

The Constitution has achieved much more than what is contained in this article, and if this is anything to go by, it will continue to achieve even more. We salute the heroes and heroines who fought long and hard for our Constitutional democracy. The law is constantly changing and adapting to the times and future developments are inevitable, especially to achieve equality for all South Africans. One thing is clear, that the Constitution is a powerful tool in that mission and a very strong force to which all decisions and actions of South Africans must be measured against.

Did you know…7 February 2022 marked the 25th year of the Constitution being fully in effect.