Why South African constitution must be amended

Introduction

On 27 April 1994 there was joy, dancing and jubilation in the streets of South Africa. They were celebrating the birth of what was called “New South Africa” or “Rainbow Nation” under Nelson Mandela. Many former colonisers of Africa too, and their allies were happy that it was the “moderates” that were going to rule this nation.

They proclaimed the constitution of South Africa as “the best and most democratic in the world.” But in 2018, almost 24 years after the creation of “New South Africa,” there are loud and angry voices that the constitution of this country must be amended. There is a strong demand that there be expropriation of land without compensation.

What has really gone wrong with the constitution that was so highly praised? It is important that another mistake is not made with regard to this country’s constitution on the fundamental issue such as land. Of course, the main problem is that the colonial disease that had been inflicted on the country was ignored. Largely it was intentional on the part of the colonialists. They wanted “change” on their colonial terms

But also, some African leaders supposedly involved in the African liberation struggle at one point; saw the struggle as no longer anti-colonial, but as mere civil rights movement. Thus they dealt with the symptoms of European colonialism and not with the colonial causes themselves.

The colonialists took advantage of this. They called those who fought against the symptoms of colonialism as “moderates,” “reasonable” and “conservative.” They called fighters who fought against the real disease – colonialism, as “extremists” “radicals” “militants” and “anti-whites.”

For example, explaining the reason why the apartheid colonialist regime of South Africa should negotiate with the “moderates;” The Star newspaper in Johannesburg, on 18 June 1986 reported:

“To the left of the ANC is the PAC, a bunch too radical for reasonable conversation…. Unless the Government talks to the ANC soon, and reaches an accommodation, the time will come when it wishes it had the ANC to talk to instead of the more radical organisations…. Better by far to talk to the Mandelas, Tambos and Makatinis, conservative men all of them.”

For his part in 1990, in The Independent newspaper in London, Gert Viljoen, the Minister of Constitutional Affairs under F.W. de Klerk, the President of apartheid colonial South Africa, made his government’s position very clear about who they would negotiate and cut deals with. He said:

“We want to change our approach. But we would be negotiating even the name. Many Blacks want to call it [South Africa], Azania. They are the extreme Pan Africanist Congress (PAC). The name Azania sounds a warning of a break in history. In our thinking, a complete break in history would be unacceptable. We will have to provide some continuation of the past.”

The amendment of the “best and democratic constitution,” especially Section 25(7) shall not resolve the land problem if it ignores the following facts:

1. How colonialism adversely affected South Africa (Azania)

It is at the Berlin Conference of seven European countries that the problem of South Africa began. This was when the chairman, Belgian King Leopold reminded his fellow colonisers of the whole of Africa, except Ethiopia that: “We are here to see how we should divide among ourselves this magnificent African cake.”

The seven European countries were Germany, France, Portugal, Italy, Spain, Belgium and Britain. Their tragic mission for Africa was implemented through the Berlin General Act of 26 February 1885.

One of the portions of Africa that Britain colonially and illegally seized for itself and its colonial settlers was Azania (South Africa). Britain named this Blackman’s country Union of South Africa in 1909. This union was made of Cape Colony, Natal, Orange Free State and Transvaal. They were all British colonies. Their main purpose was to grab the African country for themselves and fight the “native danger”[[i]]

This colonial agenda was carried through the colonial law called Union of South Africa Act 1909. Section 44 of this Act stated among other things that “The Qualifications of Members of Assembly (British colonial parliament) in Cape Town “:…must be British subject of European descent.”

2. What happened four years after formation of “Union Of South Africa Act 1909”

Four years later in 1913 this colonial parliament passed the Native Land Act 1913. It allocated 93 percent of the African country to its European colonial settlers numbering 349,837.It put aside 7 percent of the African country as “Native Reserves” for five million Africans. Why did colonialists give Africans such a small piece of land, bordering on genocide?

Sol Plaatje, a founder and first Secretary of the 1912 African National Congress (ANC), which was then called the South African Native National Congress, has written:

“In the harvest of 1911, there was panic among white farmers because an African had garnered three thousand bags of wheat and another sixteen hundred…in the neighbourhood where their white neighbours reaped only 300 to 400 bags. African produce kept the mills busy at Ficksburg, Klerksdorp, Zeerust and other places and African export business was looming in the near distant future.

Then public opinion in this country, which stands for White opinion, asserted itself. ‘Where will we get servants,’ it was asked if Kaffirs are allowed to become skilled?‘ A Kaffir with a thousand bags of wheat? What will he do with the money? If they [Africans] are inclined to herd pedigree stock, let them improve their masters (Whites’) cattle and cultivate for the land owner not for themselves.”

Plaatje concludes, “At the beginning of May [1913], no one knew that the year would see the last day of territorial freedom for Africans of the Union of South Africa. But on 19 June the same year, the law had been enacted and was operating in every part of the Union.”[[ii]]

3. Leaders of the South African Native National Congress petition King George V on land dispossession

Anyway, after Africans were colonially dispossessed of so much of their country and land; African leaders of the South African Native National Congress (SANNC), found themselves urgently in England. On 20 July 1914 they presented their petition to King George V of England in London. Among other things the petition said, “…the natives [indigenous African owners of the country] must be put in possession of the land in proportion to their numbers and on the same conditions as the white race.”

This petition to Britain as coloniser of the African country achieved nothing except the sympathy of a London daily newspaper. It reported: “In carving out estates for themselves in Africa, the white [European] races have shown little regard for the claims of the black man (African).

They have expropriated his land and have taken away his economic power and freedom and have left him worse than they found him…the blacks compared with whites are in proportion of four to one, but are in legal occupation of one fifteenth of their land…the deputation of natives now in England has appealed to the imperial government for protection.”

The five African leaders who must never be forgotten were John Dube, Sol Plaatje, R.W. Rubusana, Thomas Mapikela and Saul Msane. They had the support of African Kings who had fought many wars of national resistance against colonialism for many years until their spears surrendered to merciless guns of colonialists.

4. Justice loving people speak against land dispossession of African people

This injustice and inhumanity against Africans was taken note of by many English humanitarians. Seventeen years after the Union of South Africa 1909, Sir Thomas Farewell Buxton of the Anti-Slavery Society said, “My attention has been drawn to the wickedness of our proceedings as a nation towards countries of natives (indigenous people) we seize [by military force]. We have usurped their lands and enslaved them. Their greatest crime is the land of their forefathers.”[[iii]]

Another British humanitarian, William Ellis, made reference, “especially to seizing the land of the people whose country we may colonise and the expulsion of or annihilation of its rightful possessors. It has been our custom to go to a country, and because we were stronger than the inhabitants [militarily] take and retain possession of the country to which we had no claim, but to which they had inalienable right, upon no other principle than that we had power to do so. This is the principle that can never be acted upon without insult and offence to the Almighty, the Common Parent of the human family.”

Blackhouse, another English humanitarian, also went straight to the fundamental question of colonialism. He said that the methods that had been pursued by the British Government were “upon principles that cannot be too strongly reprobated, and which want radical reformation; Aborigines have had wholesale robbery of territory committed upon them by the Government, and the settlers have become the receivers of stolen property, and have borne the curse of it in the wrath of the Aborigines, who sooner than later, have become exasperated at being driven off their rightful possessions.”[[iv]]

These British humanitarians were not imagining things. They had facts at their disposal. In 1894 Glen Grey, a British official in South Africa, had just 15 years before the Union of South Africa Act 1909 said, “The Natives (Africans) are generally looked upon by Whites as an inferior race, whose interests must be systematically disregarded when they come into competition with their own and should be governed with a view to the advantage of the superior race.

For this reason, two things must be afforded to white colonists, land…the Kaffir population (derogatory term for Africans) should be made to furnish, as large and cheap a supply of labour as possible.”

Another colonial settler who the British government had honoured as “Sir Andries Stockenstrom” made the position of colonialists in the African country as clear as daylight. He said, “The question of robbing Africans of their land is not whether it is right or wrong to plunder, massacre and exterminate the Hottentots, the Kaffirs….the simple question is will it pay?

If the Bible and the missionary stand in the way of this one thousand percent return…if in short, they cannot promote the great work of converting a nation of shop-keepers into a nation of millionaires…gun powder will produce a more efficient gospel for the purpose of our system of civilisation.”[[v]]

5. Prince Maqoma on land before imprisoned in Robben Island

It was not “anti-white” reaction on the part of the African people in South Africa when in 1859; before he was imprisoned on Robben Island, Prince Maqoma told a British soldier, Colonel Wade, that: “We [Africans], are to repossess land again. It was bequeathed to us by our ancestors, to hold, nurture and make it productive for their progeny…. You [colonialists] came out of the sea to our land. Like a serpent you emerged out of the sea to our land.

Besides, you had no tongue to speak to us. We waited to know why you had come. Instead we heard you were settling and taking more possession of our land. But this is our land. You made us vanish, not exist. We are our land. We cannot give up. We cannot rest. Without land we cannot be.” Prince Maqoma was imprisoned in Robben Island in 1859. He died there in 1873.

6. King Moshoeshoe articulating stealing of land by Whites

When large parts of his country was being taken by force by colonial Boers in what they eventually called “Orange Free State”, King Moshoeshoe issued a number of statements: “It may be you white people, do not steal cattle, but you steal whole countries; and if you had your wish you would send us to pasture our cattle in the clouds…. Whites are stealing Blackman’s land in the Cape to here [Free State which was part of Lesotho]

“I allow you to remain [here], even if it is a year or two that you may rest on your way [to wherever you are going]. We must warn you that we look upon you merely as passers-by.”[[vi]]

7. Perfidious lies of “empty land” told to cover crimes of colonialism

Colonialists have tried every trick they can find to permanently steal and expropriate the African land for themselves. Here are a few examples to illustrate this point:

The colonial apartheid Prime Minister Hendrik F. Verwoerd told an audience in London while visiting there that, “More than 300 years ago, two population groups equally foreign to South Africa converged in rather small numbers on what was practically empty land. Neither group colonised nor robbed the other by invasion.”

His Foreign Affairs Minister Eric Louw had earlier in London falsely said, “The Bantu [Africans] began to trek from the North across Limpopo when Jan van Riebeeck landed at Table Bay in 1652.”

Even deep into ANC rule, Pieter Muller, a white minister in a purported “New South Africa” parliament, claimed that Africans in Azania (South Africa) are not the original inhabitants of this African country situated in Africa. He told parliament: “The Bantu-speaking people (Africans) moved from the Equator down South while white people moved from Cape to meet each other at the Kei River.”

If this is true why were there so many wars of national resistance against colonial invasion of the African country? Some of the battles were Blood River, Amalinde, Keiskamahoek, Thaba Bosiu, Labu Mountain. They were led by African Kings such Dingane, Hintsa, Moshoeshoe I and Sekhukhuni respectively.

The deep-seated racism of many colonial settlers must not be under-estimated when Section 25 of the South African constitution is amended. Their myth of “white superiority” has poisoned their minds and hearts. J.G. Strydom was one of the apartheid colonial prime ministers of South Africa. In 1953 two years before the ANC declared its historically false and misleading pre-amble to what it called “Freedom Charter;” Strydom said:

“Our policy is that the Europeans must stand their ground and must remain Baas (master) in South Africa…. Our view is that in every sphere, the European must retain the right to rule the country and to keep it white man’s country.”

The truth is that African liberation without repossession of their land is a gigantic colonial fraud. In South Africa millions of people do not have even a place to sleep. This is in a country that is four times the size of Britain and Northern Island combined and with less population than that of Britain.

I will not discuss here the colonial land problem, which was there up to “negotiations.” And why the “negotiations” were chiefly with those the apartheid colonialist regime had for years identified as “moderates,” “reasonable” “conservative” etc as opposed to those it considered “radicals,” “extremists,” “militants,” etc. I will not say, why the land question was not properly handled in Section 25 of the constitution during negotiations. This is what has now caused the outcry for its amendment. [[vii]]

8. South Africa “new” or old has never addressed the land issue justly

In 1913 five million Africans were colonially allocated 7 percent of their country. 93 percent of it was handed to 349,837 colonial settlers. When this land was found inadequate for Africans the Tomlison Commission was appointed in 1916. As a result of its findings 20 years later, the colonial parliament passed the Native Trust Land Act 1936 which added 6 percent to the 7 percent allocated to Africans in 1913.This left the colonial settlers with 87 percent.

In 1950 the colonial parliament passed a law called Group Areas Act 1950 to remove those Africans who were too close to “European” land. This was to intensify colonial racism, which in 1948, colonial Prime Minister Daniel Malan named “apartheid” (race separation).

When the situation did not change and the Pan Africanist Congress was first in South Africa to resort to the armed struggle; the apartheid colonialist regime resorted to creating “tribal republics” for Africans where they would “rule themselves.” They were nine “republics” called “Homelands.”  They were called Ceiskie, Kwangwane, Lebowakgomo, KwaNdebele, Venda, Kwa-Zulu, Qwaqwa, Transkei, Bophuthatswana.

South Africa’s (Azania) land surface is 472,281 square miles. But in 1969 through what the apartheid colonialist regime called Promotion of Bantu Self-Government Act No. 46, nine “Bantu Republics,” established and allocated 68,264 square miles of South African territory. The remaining 404,017 square miles with all its mineral and agricultural wealth and other national resources remained under the control of the minority white population, many of whom still have the audacity and arrogance to claim that they did not take land from any Africans. They found it “empty!”

Unfortunately, the preamble of the 1955 ANC to its Freedom Cheater betrayed the land question as articulated to King V by the founders of the South African Native National Congress. They were John Dube, Sol Plaatje, R.W. Rubusana, Thomas Mapikela and Saul Msane. This Congress name was changed to African National Congress (ANC) in 1923. Its policy on land repossession for Africans was betrayed by the 1955 ANC through the Freedom Cheater in June 1955.

It is known in informed circles that this treacherous document was written by white neo-liberals posing as “communists.” It caused the split in the liberation movement in South Africa and the Pan Africanist Congress was formed led by Mangaliso Robert Sobukwe.

It was not an over-statement when Sobukwe called the preamble to the so-called Freedom Charter, “a colossal fraud ever perpetrated upon the oppressed, exploited and degraded people. It clearly bears the stamp of its origin. It is a product of the slave mentality and colonialist orientation”. [[viii]]

Chief Albert Luthuli who was the ANC President in 1955 has ventilated on this misleading preamble. In his book Let My People Go, first published by Fontana Books in 1962, he has written:

“The date of the Congress of the people was 26 June 1955. I can only speak vaguely about preparations, which went before it…. The main disadvantage from which it suffered is that the local branches [of the 1912 ANC] submitted their material for the Charter at a very late hour – too late in fact, for the statements to be properly boiled down into one comprehensive statement.

It was not possible for the National Action Committee to circulate the draft fully.” The ANC President concludes, “The result is that the declaration is uneven…. The Freedom Charter is open to criticism.” (pages 141-142)

9. International law on valid title to land – Nemo dat quod non habet

Before I deal specifically with Nemo dat quod non habet and briefly conclude my contribution to “Why South African constitution must be amended”, let me deal with the international law aspect of South Africa. South Africa was never a state in international law. The Union of South Africa Act 1909 passed by the British Parliament on 20 September of that year did not confer legal sovereignty on Britain or its colonial settlers.

Here is a similar case and a clear legal precedent. The Japanese seized Manchuria, a province of China, by force of arms and recognised it as “Manchuo” in 1931. In 1933 the League of Nations Assembly (the predecessor of the United Nations) passed a resolution to the effect that “sovereignty over Manchuria belongs to China.” After the Second European War (wrongly called Second World War), Manchuria was returned to the Chinese.

10. South Africa the only colony Britain never decolonised

South Africa is the only British colony, which was never returned to its colonised owners by Britain its coloniser. This is out of the following British former colonies and dates of independence:

Former British colonies……………………………………Their dates of independence

Ghana (Gold Coast)………………………………………………………...…6 March 1957

Nigeria……………………………………………………………………….1 October 1960

Sierra Leone…………………………………………………………………...19 April 1960

Tanzania (Tanganyika)…………………………………………………….9 December 1961

Uganda………………..………………………………………………………9 October 1962

Kenya…………..…………………………………………………………12 December 1963

Malawi (Nyasaland)…………………………………………………....…………6 July 1964

Zambia (Northern Rhodesia)………………………………………………..24 October 1964

Lesotho (Basutoland)…………………………………………………………4 October 1966

Botswana (Bechuanaland)…………………………………………………..30 October 1966

Mauritius……………………………………………………………………...12 March 1968

Swaziland ………………………………………………………………….6 September 1968

Fiji…………………………………………………………………………..14 October 1970

Seychelles………………………………………………………………………...5 June 1976

Zimbabwe (Southern Rhodesia)………………………………………………..18 April 1980

South Africa (Azania)………………………………………………………………………..?

These countries have their dates of independence symbolising the return of their national sovereignty by Britain. These countries are not disputed by colonial settlers. Their citizenship was legalised. Former colonial settlers now live as nationalised citizens.

In South Africa (Azania), Britain fraudulently “transferred” African sovereignty to its colonial settlers. South Africa is the “Manchuo” of Africa. Britain had long planned to make this African country an “Australia” or “New Zealand.” That is why it was the only British colony in Africa that was called a “Dominion”, even though there is no such a term in international law.

British colonial dealing with Africans in South Africa (Azania) has been brutally unjust and inhuman as well as illegal. The concept of justice has been termed jus cogens. That earlier international lawyer, Grotius, was right when he said jus cogens was so immutable (unchangeable) that even God Himself could not change it.

Mangaliso Robert Sobukwe was imprisoned on Robben Island in 1963 without even a mock court trial. He had a special law to rule only him. It was called “Sobukwe Clause.” The apartheid colonial Minister of Justice John Vorster called him a “heavy weight” when compared to any leaders of the rival movement. What Sobukwe said about the Union of South African Act 1909 must be carefully noted by those who will be dealing with the amendment of Section 25 of the South African constitution.

Sobukwe boldly declared that his organisation, the Pan Africanist Congress (PAC) stood for “the overthrow of white domination. That means that the Union of South Africa Act 1909, that fossilised relic of the white man’s privileges and prejudices must be scrapped.”[[ix]]

Indeed, it is the Pan Africanist Congress of Azania, which eventually got South Africa expelled from the United Nations in 1974.Thus exposing the colonial fallacy that apartheid colonial South Africa was a state in international law.

On this matter, Tom Lodge has written, “In November 1974 the Pan Africanist Congress (PAC) succeeded in obtaining the expulsion of South Africa from the United Nations General Assembly and in July 1975, the Organisation of African Unity (OAU) Meeting in Kampala, Uganda adopted as official policy a long document prepared by the PAC arguing the illegality of South Africa’s status.”[[x]]

In1982, the United Nations granted PAC an observer status. The Pan Africanist Congress occupied the seat that had been occupied by the apartheid colonialist regime for decades. The ANC benefited from this PAC international victory. The result of this victory got apartheid colonial South Africa de-recognised as a state in international law. The ANC too was given an observer status even though it had since 1955 erroneously held the false position that South Africa was a state in international law and not a colony.

11. Drafters of South African constitution ignored –Nemo dat quod non habet

The drafters of Section 25 of the South African constitution totally ignored the principle of nemo dat quod non habet. It means that no one but the property owner can give good title. This is to say a valid legal title according to international law or law of nations. The validity of title by the way is also required in English land law and commercial law.

Tabula rasa or clean slate or “Nyerere doctrine” in the law of treaties illustrates the state practice of Africa on how the colonised states viewed their sovereignty even when it had been illegally usurped for a long time. See how strongly established this principle was upheld in three cases in Nigeria against France etc. [[xi]]

South Africa (Azania) never became the legal property of its colonisers. Africans have good and legal title to this country. They never lost this title. It is unchangeable. Colonialism was illegal and colonialism is not perpetual, as recent history has demonstrated. In South Africa (Azania), it was indigenous Africans who had good title, not colonial terrorists who seized it by force of arms and from outside Africa.

Those who acquired land from colonial rulers never possessed any valid legal title to that land. Legally, the question of “compensation to one who bought it as stolen property; does not arise except on purely compassionate human grounds as the magnanimity of Africans has demonstrated for many centuries”.

The principle of nemo dat quod non habet in international law was made clear in the Island of Palmas Case. The title was about territory. The case was before the Permanent Court of Arbitration. In that court case Judge Max Hubert stated:

 “It is an established fact of international law that if a state transferred a territory, the legality of international law of the transfer depends on the title it holds. If it is defective, the title of the state to which the territory is transferred or ceded will be vitiated by the same defect. Again the Latin maxim is Nemo dat quod non habet.”

Legal title was also recognised by the Roman law in another maxim, “Quod nullius est, id ratione naturali occupant conceditor.” Translated into English it says, “Natural reason concedes ownership to the first occupier.” The credentials of Azania as sovereign state are well established in international law. She was not an “empty land” when her sovereignty was usurped through colonial terrorism.

She was ruled by kings and queens who were overthrown with guns by colonialists and their sovereignties usurped. Makado, Hintsa, Dingane, Mzilikazi, Makana and others can give witness. Moshoeshoe knew something about Thababosiu and numerous other wars he fought until he lost large portions of his country to the colonialists. Azania was not “terra nullius” and therefore “res nullius” when colonially invaded and her sovereignty usurped.

G.F. Martens, a noted international lawyer, was right when wrote, “From the moment a nation has taken possession of a territory in right of first occupier, and with the design to establish itself there for the future, it becomes the absolute and sole proprietor of it and all that it contains; and has the right to exclude other nations from it.”[[xii]]

12. Long settlement does not transfer the indigenous title

International law posits that colonial settlers do not acquire a territory of an indigenous people merely because they have lived in it for a long time. Only legal owners can confer rights. And African law was as civilised as any law of civilised nations. There has been a tendency for racist nations to think that their laws were or are “more civilised and superior;” this is despite the atrocities of the Trans Atlantic Slave Trade, colonial terrorism and racism which they inflicted in this world, especially in Africa.

Here are cases of how international law has operated. The Chinese territory of Macao was occupied by the Portuguese in 1549. The colonial power settled its own inhabitants and claimed this territory as its own. The People’s Republic of China rejected this claim and Macao was restored to the Chinese on 20 December 1999. China demanded the same from Britain for Hong Kong. Britain had claimed it as its own since 1842. Britain returned Hong Kong to the Chinese in 1997.

In Africa three African countries, Guinea Bissau, Angola and Mozambique were occupied and settled by Portuguese colonial settlers by force of arms in 1440, 1482 and 1497 respectively. The liberation movements of these three African countries refused to accept the Portuguese argument that because they had settled in these African territories for a long time, they were entitled to their ownership, and the usurpation of the African sovereignties.

When Portugal persisted in its illegal and colonial view; the national liberation movements of these territories took up their arms and terminated Portuguese colonial rule and illegal occupation of their country. These liberation movements were African Party of Guinea Bissau and Cape Verde Island, FNLA, MPLA, UNITA; FRELIMO and COREMO.

Portugal occupied Guinea Bissau and Cape Verde Island for 533 years, Angola for 493 years and Mozambique for 475 years. Guinea Bissau and Cape Verde Island regained their independence on 5 April 1975. Angola regained its national independence on 11 November 1975. Mozambique got back its national sovereignty on 25 June 1975.

The view that long settlement by colonial rule does not transfer the title to land of the indigenous people was also articulated by India’s representative to the United Nations Security Council. On 17-18 December 1961, India ordered her troops to seize the territories of Goa, Danao and Diu on the Indian subcontinent. On 18 December, Portugal that had settled and colonised these territories for over 400 years by military force, asked the Security Council of the United Nations to act against the aggression of India and order India to withdraw from these territories forthwith.

C. S. Jah Ambassador of India submitted that, “This is a colonial question, in the sense that that part of our country is illegally occupied by right of conquest by the Portuguese. The fact that they have occupied it for 450 years is of no consequence…. I would like to put this matter very clearly before the Council, that Portugal has no sovereign right over this territory…since the whole occupation is illegal as an issue, it started in an illegal manner, it continues to be illegal as an issue. It is even more illegal in the light of Resolution 1514 (XXV).”[[xiii]]

India won the case against Portugal. India had not regarded Portugal as having title over Indian land, which Portugal had unlawfully acquired in 1510. Incidentally the Union of South Africa Act 1909 illegally took effect on 30 May 1910.

In Azania/South Africa, Africans have never asked for anything but justice and truth. The 1912 African leaders of the original ANC demonstrated the magnanimity and humanness of the African people when they demanded from King George V only that, “Africans be put in possession of land in proportion to their numbers.” But they never compromised their slogan “Afrika! Mayibuye! Mayibuye!”iAfrika! (Africa must come back to its rightful owners)

The Congress Youth League under Muziwakhe Anthony Lembede and A.P. Mda, used the same slogan. In 1943, this original Youth League of the 1912 ANC produced four documents to guide the African liberation struggle. One of them was called, “Africans’ Claims in South Africa and Bill of Rights”. Among other things it declared:

“We demand the right to an equal share in all the material resources of the country and we urge: That the present 13 percent surface area, to eight million Africans as against two million Europeans is unjust…and therefore, we demand a fair distribution of the land.”

African leaders such as Mangaliso Robert Sobukwe in the Pan Africanist Congress have consistently proclaimed: “Izwe Lethu! iAfrika! iAfrika! Izwe Lethu!” This says “The Land is Ours!” There can be no compromise about this. Our African kings fought wars of national resistance for land until the colonial guns of aggression prevailed over their spears.

Colonialism and the myth of “white supremacy” are at the core of frustrating the equitable redistribution of land and its resources in this African country on the African continent. South Africa has 80 percent African population. But millions of Africans cannot even find a decent place to sleep. They live in humiliating and inhuman poverty.

Despite the atrocities of colonialism and racism that have been inflicted upon Africans for over 300 years in South Africa; no African has ever said Whites must be driven to the sea where they came from. But the Whites will drive themselves to the sea on their own and drown there if they resist a constitution that is fair, just and fulfils the agenda of equitable redistribution of land and its resources according to population numbers.

Zephaniah Mothopeng was “accused number one” in the Bethal Trial. He was sentenced to 30 years for the Soweto Uprising of 16 June 1976 in South Africa. He was the second President of the Pan Africanist Congress after the death of Mangaliso Robert Sobukwe. On negotiations in South Africa that eventually took place in Convention for a Democratic South Africa (CODESA), he was right when he said, “South Africa cannot hope for a political solution for whites until land is equitably distributed.”

As international law and history discussed above have shown, illegality cannot legalise itself. Illegitimacy cannot legitimise itself. The dispossessed people of this country demand economic liberation and social emancipation. Resistance to the fair and just distribution of land according to population numbers in South Africa is an invitation to a dangerous political instability. Poverty is the mother of revolutions.

The battle for land is the battle for equality for everyone. “New South Africa” is a big joke, if it thinks it can create a so-called “rainbow nation” of an unequal society, in which the indigenous Africans continue to sink in poverty and humiliation in the land of their ancestors.

Members of the South African Parliament must not make another mistake. They must amend Section 25 of the South African constitution with open minds, hearts and minds. For centuries Africans in this country have waited for justice to be done and for truth to prevail.

Equitable distribution of the country’s resources must prevail. No African should sleep in a slum. No African children should lack education that gives them skills and professions to create jobs for themselves and develop their country in an economically equal society.

The amendment to the South African constitution must use correct language. Land was expropriated from Africans through colonialism and Africans were dispossessed and robbed of their land. It must be restored to its rightful owners who by law have a valid legal title to it and be equitably redistributed to all its citizens according population numbers.

13. Comments on section 25 of South African constitution

Drafters of section 25 of the South African constitution, which was supposed to deal with the fundamental issue of “negotiations” of equitable distribution or fair sharing of land, used very elusive and vague language. That is in CODESA in 1993.The language used reveals that they were very insensitive to the question colonial land dispossession of the African indigenous majority.

For example, the heading that is supposedly dealing with land is called “Property”

Section 25(1) states that “No one may be deprived of property in terms of general application, and no law may permit arbitrary deprivation of property.”

In law there is moveable property and immoveable property.

(2) says, “Property may be expropriated only in terms of law of general application….”

It further declares, “The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance…having regard to the relevant circumstances, including (a) the current use of the property; (b) the history of the acquisition and use of property;….”

This so-called property clause has in mind mainly the protection of those who colonially acquired African land through colonial guns and want to make sure that this is perpetuated. The history and principles of international law that apply and are relevant to this subject matter are totally ignored, apparently with the view to keep this colonial situation as it has been, but under the guise of “democracy”

(7) states that, “A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled,…either to restitution of that property or to equitable redress.”

Africans in South Africa (Azania) were dispossessed of their country not as individual persons or community except under the Group Areas Act 1950. As a nation they were dispossessed of their country and their sovereignties colonially usurped under the Berlin General Act of 26 February 1885, the Union of South Africa Act 1909, Native Land Act 1913, Native Trust Land Act 1936. And of course under the Bantustan law in which nine “republics” called “Bantu Home Lands were allocated 68,264 square miles combined; out of 472,281 square miles. The rest remained under the white minority.

In addition, it must be observed that the Native Land Act 1913 became law on 19 June 1913. It was only 7 percent for five million Africans. 93 percent of African land had illegally and colonially become the property of 349, 837 colonial settlers. There was hardly any land for Africans to claim. That is why the Native Trust Land 1936 was added to make 13 percent of land for land dispossessed Africans.

Now, according to section 25 of the South African constitution, those who took land from Africans colonially and illegally must be “compensated” by the landless and extremely poor. There is no human consideration that those whose land was expropriated by colonialists were never compensated. In fact, “willing seller and willing buyer” became an unmitigated disaster.

It was bound to be. The injustice of this is humanly unbearable when it is noted that this land was stolen through colonial terrorism with guns. Now Africans from who it was stolen are being told they can get it back only by buying it from those who stole it. This is an unlawful act in international law. The legal title of the African people to this country as has been pointed out above never passed or could be “transferred” by those who had no title to it. Principles of international law are very clear on this matter. An aggressor cannot acquire title to a territory by force.

14. Africa needs a new breed of investors

South Africa must have a constitution that liberates the indigenous African majority economically. They have been land dispossessed and economically exploited for over three centuries now. This African country has resources. With high quality diversified education and technological advancement; South Africa can manage its resources more efficiently and have a satisfactory degree of self-reliance economically.

This nation must have a constitution, which removes the shame and danger of a “two-nation” syndrome in which one is extremely rich and is a white minority, and another is extremely poor and is black majority. Poverty is the mother of revolutions and political instability. The Azanian liberation struggle was fought for justice, truth and equality

Yes, the interests of foreign investors must be protected, but this 21st century needs a new breed of investors who do not think they are indispensable and must dictate unacceptable terms to this nation or any other African nation.

I agree with Kwame Nkrumah the first President of Ghana when he said, “We welcome investors in the spirit of partnership. They can earn their profits here provided they leave us with an agreed portion, promoting the welfare and happiness of our people as a whole, as against the greedy ambitions of some [investors].

From what we get out of this partnership, we hope to expand the health services of our people, to feed and house all, to give them more and better educational institutions and see to it that they have a rising standard of living.”

15. Conclusion: Relevance of history to the present

On why the South African constitution must be amended with regard to section 25, I feel compelled to conclude this important subject by saying that many people in South Africa preach the gospel of “Forget the Past.” But where their own issues are involved they not only remember the past; they commemorate it, many times even if it is false colonial history and a reflection of barbarism.

Life must be lived forward, but it can only be understood backward. As that Roman philosopher Cicero put it, many years ago, “To remain ignorant of things before you were born is to remain a child.”

On this important subject I remind of John Henric Clarke, an African American professor of history. He has written, “History is a clock that tells a people their historical time of the day. It is a compass that people use to locate themselves on the map of human geography. A people’s history tells them what they have been, where they are now … more importantly, where they still must go.”

Indeed, our own Muziwakhe Anthony Lembede, that great philosopher and awakener of the African youth in his generation, in South Africa, albeit he died so early advised, “One who wants to create a future must not forget the past.”

May amenders of section 25 of the South African constitution have a rich memory that inspires a rich future especially, for the African youth. This includes the question why was there “Sobukwe Clause” in South Africa? And why did the apartheid colonialist regime declare the Pan Africanist Congress he led unlawful organisation when it was only one year one day?

The memory of Prince Maqoma, a Xhosa-speaking prince, will be helpful to the amenders of section 25 of the South African constitution. Before he was imprisoned on Robben Island in 1859 and dying for his country there in 1873, Prince Maqoma told a British soldier Colonel Wade:

“We, [Africans] are to repossess our land again. It was bequeathed to us by our ancestors, to hold, nurture and make it productive for their progeny…. You [colonialists] made us vanish, not exist…. We cannot give up. We cannot rest. Without land we cannot be.”

 

* Doctor Motsoko Pheko is a historian and author of several books such as Africa in the next 50 years and How Africa can regain her lost power and glory. He is a former Member of the South African Parliament. During the liberation struggle he represented the victims of apartheid and colonialism at the United Nations in New York and at the United Nations Commission on Human Rights.