RESPONSE TO NELSON MANDELA LECTURE DELIVERD BY CHIEF JUSTICE MOGOENG MOGOENG BY DR MOTSOKO PHEKO

On 23rd November 2019, Chief Justice Mogoeng of the Constitutional Court of South Africa made very important points on constitutionalism as an instrument for transformation in South Africa. This was at the 17th Nelson Mandela Annual Lecture, University of Johannesburg Soweto Campus. The Judge opened his lecture by saying that, at the signing of the Constitution in Sharpeville on 10th December 1996, President Mandela said:
“As we close a chapter of exclusion and horrific struggle we reaffirm our determination to build a society of which each of us can be proud of, as South Africans, and as Africans, and citizens of the world. As your first democratically elected President I feel honored and humbled by the responsibility of signing into law a text that embodies our nation’s highest aspirations.
Still, on Sharpeville, he went to say, “Today we cross a critical threshold…Let us give practical recognition to the injustices of the past by building a future based on equality and social justice.”
Chief Justice Mogoeng mentioned what Mandela had also said on unity. This is tolerance, banishing homelessness, hunger, and disease. “In so doing we will redeem the faith which fired those whose blood-drenched the soil of Sharpeville and elsewhere in our country, and beyond,” he said.
I agreed with Chief Justice Mogoeng when he stated that, Freedom should not be understood to mean leadership positions or even appointments to top positions. He was correct when he pointed out that constitutionalism was an instrument of transformation. No human being is a saint and that Nelson Mandela was not an exception. But there are clear mistakes that could have been avoided and genuine negotiations made with the apartheid colonialist regime at “CODESA.”
The injustices of colonialism and apartheid have not been dealt with by removing them. National unity has not been cultivated. Sectarian politics have been intensified. Citizenship has been confused with Party membership. For instance, a whole liberation movement that was recognised internationally and continentally; and which among other things got apartheid colonial South Africa expelled from the United Nations. And derecognised by all nations of the world as a state in international law has never been given the respect it deserves by the ruling party. That Party has continued to imprison freedom fighters who fought under the Azanian Peoples’ Liberation Army, the armed wing of the Pan Africanist Congress (PAC).
This failure to distinguish between national issues and sectarian party politics are demonstrated by the fact that prominent PAC leaders such as Dr. Mangaliso Robert Sobukwe, Zephania Mothopeng, Jafta “Jeff” Masemola have hardly been given the status of national heroes they deserve in this country. Masemola was sentenced to death, reduced to life imprisonment in Robben Island.
History has also been falsified. For example, it is the Pan Africanist Congress members who were first to be imprisoned on Robben Island from 12th October 1962. It is the PAC that formed a military wing to wage an armed struggle in this country after the Sharpeville massacre and massacres in other parts of this country on 21st March 1960. This country needs national unity if it is to destroy imperialism and neo-colonialism.
POQO which renamed itself the Azanian Peoples’ Liberation Army (APLA) in 1968 has been a reality nationally, continentally and internationally. Let me give three examples:

  1. In 1819 Makana also known as Makhanda and nicknamed “Nxele” because he was left-handed; was the first African leader imprisoned in Robben Island.
  2. In 1859 eight other African heroes such as Maqoma and Mahala were imprisoned in Robben Island. Mahala was a son of King Ndlambe.
  3. Chief Langalibalele of the Amahlubi Africans led an uprising against British colonialism in Natal in 1873. He was banished to Robben Island in 1874 after a colonial court convicted him of “treason.” These barbarians saw nothing wrong with imposing “treason” on this chief for resisting the barbarism of colonialists.
  4. .There were no other political prisoners on Robben Island for 88 years since Chief Langalibalele imprisonment there until over1000 members and leaders of the Pan Africanist Congress were imprisoned there charged with armed uprising called POQO.
  5. They included Jafta “Jeff” Masemola, Samuel Chibane, Philimon Tefu, John Nkosi, Isaac Mthimunye and Dimake Malepe. These sons of Africa included Dikgang Moseneke who later became Advocate Moseneke and Deputy Justice of the Constitutional Court of South Africa. They had been arrested throughout the country. Some of these Pan Africanists began to arrive in Robben Island Prison on the 12 October 1962.
    Mr. Nelson Mandela with about four ANC of his comrades arrived on Robben Island in June 1964.
    It is the Pan Africanist Congress leadership of Dr. Mangaliso Robert Sobukwe which introduced the political culture of “leaders in front [to prison], “no bail, no defense, no fine.”
    When the apartheid colonialist magistrate delivered his 2 hours 15 minutes judgment on PAC members, he said, “Not only was it your object to fill jails, but you intended to paralyse trade, industry and the economy of the country, in order to force the Government to change the laws.”
    It was the PAC President Mangaliso Robert Sobukwe who had replied, “Your Worship, it will be remembered that when the case began we refused to plead because we felt no moral obligation whatsoever to obey laws which are made exclusively by a white minority…
    We would have betrayed the human race if we had not done our share. We are glad to have made our contribution. We stand for equal rights for all individuals. But the whites have to accept allegiance to Africa first. Once a truly non-racial democracy exists in South Africa, all individuals, whatever their colour…, will be accepted as Africans.
    As individuals, we do not count. We are but the tools of history, which will always find new tools. We are not afraid of the consequences of our action and it is not our intention to plead for mercy. Thank You, Your Worship.”
    Three years after Sobukwe said this here is how Nelson Mandela followed in the footprints of Sobukwe:: “I challenge the right of this court to hear my case on two grounds: Firstly I challenge it because I fear that I will not be given a fair and proper trial. Secondly, I consider myself neither legally nor morally bound to obey laws made by a parliament in which I have no representation.” Sobukwe had set the pace that was irreversible.
    It must be remembered that on 20th March 1960, the Secretary-General of the ANC Duma Nokwe had rejected the Pan Africanist Congress invitation to the ANC to take part in the coming UpRising to be launched on 21st March 1960. His letter in part read:
    “We must avoid sensational actions which might not succeed because we realise that it is treacherous to the liberation movement to embark on a campaign which has not been properly prepared for and which has no reasonable prospect of success.”
    Of course, if Sobukwe and his Pan Africanist Congress comrades had never launched what is now known as the 21st of March 1960 or “Sharpeville Uprising;” South Africa might still be a country of complete slaves.
    What Others Have Said About This PAC-Led Uprising
  6. Frantz Fanon a man with impeccable revolutionary credentials has written, “Sharpeville shook public opinion for months, in newspapers, over the wavelengths and private conversations. It is through Sharpeville Uprising that men and women in the world became acquainted with the problem of apartheid in South Africa.”
  7. In April 1960, Paul Sauer the apartheid colonial Acting Prime Minister admitted the uniqueness of the Pan Africanist Congress Sharpeville Uprising. He said, “The old book of South Africa was closed a month ago…for the immediate future, South Africa will have to consider in earnest and honestly her approach to the conception of baaskap (white supremacy).
  8. Prof. Bernard Leeman, a British academic for his part has written, “In the aftermath of Sharpeville, Whites flocked to the Canadian and Australian High Commission Offices in Pretoria. They enquired about emigration. Many Whites bought guns. The helmeted troops patrolled the streets. In a single day the Pan Africanist Congress had changed South Africa.”
  9. For his part Dr. Ismail Mohammed a Mathematics lecturer at Witwatersrand University has written, “Sharpeville stands out as a turning point in our history. In the aftermath of Sharpeville, when the horrible magnitude of tyrant became clear, the lines were drawn and gave birth to forces destined to determine the destiny of our country. (Natal Mercury 1st March 1981)
    How Sobukwe Regarded By Internal And External Forces
    Johannes Balthazar Vorster the apartheid colonialist Prime Minister described Sobukwe as “heavyweight” when compared with any of the ANC leaders. When the South African apartheid regime imposed on him a special law in the South African colonial parliament, it said:
    “Then we come to the ‘Sobukwe Clause’…I appreciate the principle this clause is concerned with the security of the state. It does not relate to any other crime….But I want to say [to her Helen Suzman M.P.] if her amendment was to succeed and Robert Sobukwe released, we would have a fine to pay in this country.”
    Vorster had added, “…here we are dealing with a person…who has a magnetic personality, a person who feels he has a vocation to perform this task well knowing what methods will be applied.”
    This was when earlier on 8th April 1960, Len Lee Warden a representative of the ANC in the Western Cape had told parliament in Cape Town, “If ever there was a need, it exists today for the Government to realise that it has in the ANC a friend and not an enemy because these two organisations are so diametrically opposed that the government should seize the opportunity of appealing to the ANC to assist it to restore peace and order in South Africa.”
    This agitated the author of Martyrs And Fanatics South Africa and Human Destiny, Peter Dreyer to write by rejecting this injustice against the Pan Africanist Congress saying; “Len-Lee Warden, member of parliament…for the Western Cape now committed the signal indecency of pleading that the South African Government ban only the PAC.”(Martyrs And Fanatics: South Africa And The Human Destiny pages 174-175 Peter Dryer).
    This singling out of banning a liberation movement was done to a man and Pan Africanist Congress that had long denounced multi-racialism as racialism multiplied. Through the lips of its own President Sobukwe, they had declared, “There is only one race the human race.” This was through a man who had told the world that he was fighting for individual rights for every human being.
    Chief Justice Mogoeng stressed the importance of unity of the people of South Africa (Azania) and that Nelson Mandela himself had endorsed it. But to what extent was this African national unity compromised and made impossible in the present constitution by outside forces? This nation requires a National Assembly/Constituency that can look at things anew.
    All its people must come together to discuss a way forward to work out a new way to make it prosperous for all its citizens and the ethics to rule it with integrity and corruption severely punished and unified with shining patriotism and deep love for it, Africa, humanity and service for mankind. This must be based on culture and ideology not cult personality. This is because humans are easy to manipulate by imperialists or make human mistakes.
    Past mistakes that divide Africans must Be Corrected
    In 1990 travelling in London, Dr. 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 with. Among other things he said:
    “We want to change our approach. But we would be negotiating even the name. Many Blacks want to call it {Azania] (South Africa). They are the extreme Pan Africanist Congress (PAC). The name Azania sounds a warning note 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.”
    Explaining the reason for the apartheid regime to want to negotiate with “moderates,” The Star newspaper in Johannesburg on 18th June 1986 had said, “To the left of the ANC is the Pan Africanist Congress, 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 Mandela’s, Tambo’s and Makatini’s, conservative men all of them.” The reporter was Allister Sparks.(See also Allister Sparks New Yorker 11 April 1994 and Letter from South Africa: The Secret Revolution by Allister Sparks and New Yorker 14 April 1994)
    To such negotiations, a Pan Africanist lawyer in America Alton Henry Maddox warned that for landless Africans in South Africa, the economic conditions will worsen after April 1994 when black faces are elected to high places. The vote will simply legitimise the fruits of apartheid.
    Zephania L. Mothopeng who had been a teacher, a leader of the June 1976 Soweto Uprising sentenced to 30 years imprisonment and President of the Pan Africanist Congress; .had predicted that South Africa could not hope for a positive solution until the regime stops demanding a unique solution for whites and until land is equitably redistributed.
    Chief Justice Mogoeng was correct when he mentioned the importance of national unity. It must be observed that the political history of this country is full of divisions that have hindered its success and prosperity economically, educationally, technologically etc. One of the things Chief Justice Mogoeng said must happen is lack of love for money by its leaders, while its people wallow in the quagmire of poverty.
    Freedom Charter Has Divided The People Of This Country
    Let me speak through the people not any school of thought:
  10. Mangaliso Robert Sobukwe described the Freedom Charter as “…a colossal fraud ever perpetuated 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. (See Speeches Of Mangaliso Robert Sobukwe page 42. See also a leeter of 2nd November 1958 from Africanists to the 1955 ANC)
  11. Chief Albert Luthuli during his Presidency of the ANC wrote, “The Freedom Charter is open to criticism…I can only speak vaguely about the preparations which went into it….The main disadvantage from which it suffered was local branches submitted their material for the charter… too late in fact…It was not possible for the National Committee to circulate the draft carefully. The result is that the declaration is uneven.”(Let My People Go 1st edition by Albert Luthuli).
  12. In 1977, nineteen years after the Pan Africanist Congress rejected the Freedom Charter as colossal fraud, Steve Biko of the Black Consciousness Movement wrote, “Above all, we Black people should keep in mind that South Africa is our country. The arrogance that makes the white people travel all the way from Europe to come and balkanise our country and shift us around must be destroyed…whereas whites were guests to us on arrival in this country, they have now pushed us to a 13% corner of the LAND and acting as bad hosts in the rest of the country. This must be put right.”I write What I like by Steve Biko page 139)
  13. In 1988 the ANC assigned Francis Meli to write its book. It was titled SOUTH AFRICA BELONGS TO US. The book sits on the fence concerning the ownership of the country. A reviewer of it has written, “Even in a book like this, the ANC does not spell out to whom it believes the country belongs. At the end of reading SOUTH AFRICA BELONGS TO US, we still do not know to whom the ANC believes the land belongs.”
  14. (SOUTH AFRICA BELONGS TO US: a History Of The ANC by Francis Meli, Zimbabwe Publishing House by Southern African Review Books October-November 1988)
    Indeed, the “Freedom Charter” as adopted and signed at Kliptown in June 1955 was handed to the ANC in May 2010 by the Liliesleaf Trust. This charter had been bought from British auctioneers Bonhams for sixty thousand pounds to be preserved. Nic Wolpe the Liliesleaf Trust’s CEO was contacted by the National Archives. Neo-liberals have been interested in preserving this charter more than the ANC leaders themselves. They called it a “historic document.” For whom is it “historic”?
    The 1912 African National Congress Made Its Land Repossession Clear
    On 20th July 1914 President John Langalibalele “Mafukuzela” Dube led a delegation of some 1912 ANC leaders. They included Solomon Plaatje, Dr. Walter Rubusana, Saul Msane and Thomas Maphikela.
    They went to Britain the coloniser of this African country. They presented the petition of the African people of this country to King George V. This petition demanded that “the natives (Africans) be put in possession of land in proportion to their numbers.” The ANC of 1912 never wavered about the return of land to its colonised African people. In the Constitution of 1919, article 25 stated one of the objectives of this 1912 African National Congress was “the safe-guarding of interests of the African people.”
    At its meeting held in Pietermaritzburg on 22 October1916 the 1912 ANC passed a resolution objecting to the parcelling of land into private farms for whites and demanded that land remains a permanent reserve for the original owners (the Africans). The African Kings had themselves fought numerous wars of national resistance to defend their land even with their inferior weapons to those of the colonial terrorists.
    Indeed, one of their Documents before the 1955 ANC was Africans’ Claims In South Africa And Bill Of Rights. Among other things this 1912 ANC document reads:
    “We demand the right to an equal share in all the material resources of the country and we urge: That the present 13% of the surface area to 8 million Africans, as against 87% to 2 million Europeans is unjust…and therefore, demand a fair redistribution of the LAND.”
    That is why when the 1955 ANC compromised the land question with its Freedom Cheater, the Youth League Wing broke away and formed the Pan Africanist Congress whose political track record is remarkable.
    Dr Mangaliso Robert Sobukwe who resigned his lectureship job at Witwatersrand University strongly believed that:
    “True leadership demands
    Complete subjugation of self,
    Absolute honesty and integrity
    Uprightness of character
    Above all, a consuming love
    For one’s people.”
    How Did The Freedom Charter Replace The 1912 ANC?
    Briefly let me quote Jordan Ngubane. He was a brilliant and prominent journalist. He later wrote a book titled AN AFRICAN EXPLAINS APARTHEID. Among other things he has written, “People who sat in the inner circles of this alliance [1955 ANC and white neo-liberals] stated privately that the ANC leaders tended to accept instructions from white liberals rather than to participate in the formulation of policies “
    How Was The Freedom Charter Adopted?
    . Zwelakhe Lesole writer of Freedom Charter Of Congress Alliance
    states, “The Kliptown Conference which sat on 26 June 1955 was equally a strange one from two points of departure. That is composition of delegates and running of the proceedings. At the beginning of the conference a number of ANC Youth League and the Africanist-inclined members wanted credentials to be created in order to check the delegates as to the organisations and societies they represented. This demand was rejected. It is alleged by many that the so-called delegates were ordinary people picked from bus stops.”
    Lesole continues and concludes, “In conducting the voting process, the chairman of this particular session called upon those who were for the Freedom Charter to raise their right hands. A count of 20% of the delegates was recorded. The chairman called again and said:
    ‘Those who are for Verwoerd [the apartheid colonialist prime minister] and against the charter, show by your hands.’
    Nobody raised a hand, obviously because the chairman said those who were for Verwoerd. It was at this point that the chairman chairing the session announced that the Charter had been adopted unanimously without any opposition.”
    It is not surprising that in recent years, writing about the “sharing” of land with colonial dispossessors, an African professor of political science and economics Sipho Shabalala has written, “Today, the reality is that South Africa in terms of ownership and control of the economy is a white man’s country. There is the ‘first world economy’ for White minority and the ‘third world economy’ for the African majority; as shown by their poverty, disease, ignorance, unemployment , landlessness and short life expectancy. This country needs principled national unity built on justice, truth and fairness.
    .Those who call the Freedom Charter “Freedoom Charter” are not racists. They are simply disagreeing with a national road that is leading nowhere, for the still colonially and land dispossessed Africans. They are still brothers and sisters and fellow citizens, but seeing things in a different way. The truth of the matter is that their country was taken from them through the roaring guns of Britain and colonial terrorism. I am providing the following evidence:
    Witness 1. Thomas Farewell Buxton of the Anti-Slavery And Aborigines Society has written: “My attention has been drawn to the wickedness of our proceedings as a [British] nation towards…the natives of countries we seize. We have usurped their lands, kid knapped and enslaved them. Their greatest crime is the LAND of their forefathers.”(Sir Thomas Farewell Buxton Edited Memoirs London 1926 page 126)
    Witness 2. Williams Ellis has made reference to “…especially seizing LANDS of people whose country we colonise and the expulsion and humiliation of its rightful possessors. It has been our custom to go to a country and because we were stronger than the inhabitants [militarily] take their possession of the country to which we had no claim, but to which they had inalienable right. …This is the principle that can never be acted upon without insult and offence to Almighty, the Common Parent of the human family..” (Aborigines Protection Society 1836 page 516)
    Witness 3. T.L. Schreiner has said, “I have heard about making South Africa a white man’s country. This is impossible because before Europeans sat foot here, the Africans wer andrew@africa-confidential.come here….We did not bring it about. It was brought about by a Higher Power….”(Union Of South Africa House Of Assembly Debates First Session, First Parliament 1910-191 pages 18-19 pages 427 and 444)
    Imperialist Forces Have Vested Interest In A Divided Africa
    Twenty five years of ANC rule has failed liberating and prospering the African people of this country and those who consider themselves Africans and owing allegiance to Africa. To come up with a liberatory constitution this country will have to acknowledge its mistake of disunity, lack of ethics, integrity and complete honesty with one another. Its leaders must stop the game of hunting with the dogs while running with the hare.
    In the1994 crucial elections, the liberation movement was divided by imperialist forces for their own imperialist interests. They wanted to continue to control the economic power of this country while Africans “enjoyed the flag.” The American government can be singled out. It heavily financed Nelson Mandela of the ANC and to ensure that the de Klerk-Mandela plan succeeded.
    Stanley B. Greenberg and Frank Geer directed the ANC election campaign. The two men had been President Clinton’s own pollster and image-maker respectively. In the American Presidential elections, they had successfully got Clinton elected as the first Democratic President of America after more than 20 years of Republican rule there.
    Writing about the Pan Africanist Congress, Greenberg has written, “The PAC launched an anti-pass campaign…close to 70 demonstrators at Sharpeville were massacred, putting the international lime light on the PAC. For the New African States, it was the PAC that was seen as the leading force for change. So when Mandela surreptitiously travelled outside South Africa for the first time, he found the ANC multi-racialism oddly out of step with the winds sweeping Africa.”
    Greenberg concludes, “The PAC was the only other Party with standing in the anti-apartheid struggle and thus the majority of Africans viewed it favourably….The PAC boycotted the negotiations with de Klerk…and when it joined…advocated expropriation of white land without compensation.” (Dispatch From The War Room by Stanley B. Greenberg pages 126-127)
    The truth however is that it is colonial terrorists who expropriated land from Africans. This was through the Berlin General Act of 26 February 1885.South Africa and Zimbabwe became British colonies, illegally and by colonial terrorism. African countries were seized from its African owners. Yet as late as 27 November 2019, the world heard Donald Trump of America arrogantly telling the world that he could uplift sanctions on Zimbabwe only if Zimbabwe government returned land to colonialists they acquired through colonial terrorism.
    Of course the British regime had long violated its Lancaster House Agreement by not paying its farmers land that it had stolen from the people of Zimbabwe. Zimbabwe is not a problem of “expropriation.” It is the colonial stealing of Zimbabwe and failure by Britain to return land to its African people and reneging on the Lancaster House Agreement so that Britain could continue to loot the riches of Zimbabwe and of Africa in general..
    The Drafters Of South African Constitution
    The drafters of section 25 of South African Constitution compromised an important principle of international law known as, “nemo dat quod non habet.” It means that only the property owner can give good title. A valid legal title according to this principle of international law of nations is held only by its owner.
    Tabula Rasa or clean state or “Nyerere doctrine” in the law of treaties also illustrates the state practice of African states viewed by their sovereignties even when they had been illegally usurped for a long time. (South Africa: Betrayal Of A Colonised People –Issues International Human Right S.E.M. Pheko pages 53-54 ISAL Publication, London)
    The principle of nemo dat quod non habet was affirmed in the Island Of Palmas Case. The title was about territory. The Case was heard before the Permanent Court of Arbitration in 1928.In that Case Judge Max Hubert stated:
    “It is an established law that if a state transferred a territory, the legality of international law 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.”
    Indeed, G.F. Martens, a noted International law jurist was right when he 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.”
    Azania (South Africa) was never terra nullius and therefore res nullius (empty land and therefore unpopulated) as some desperate colonialists have lied about this African country.
    Conclusion
    Let me close my response to the Nelson Mandela Lecture by Chief Justice Mogoeng by saying that our constitution must embrace and implement the values of UBUNTU/BOTHO/HUMANNESS. As Bishop Stanley M. Mogoba has written in his book, BAPEDI BELIEFS page 169:
    “Exclusivity was never a trait of the Africans….Sharing and kindness and care for the stranger at the gate are the very essence of BOTHO/UBUNTU. Even from the most radical we have not heard: ‘Throw the sons and daughters of the marauders into the sea.’
    It is this UBUNTU/BOTHO by the Africans to share their heritage, and land even before Jan van Riebeeck arrived, that has made Africa a prey to the wiles of the greed of European interlopers coming in all guises; a wandering shipwrecked traveller, explorer, teacher, missionary.…”
    We must however, be more vigilant and agree with Ernesto che Guevera when he said: “Above all, we must always be capable of feeling deeply, any injustice committed against anyone, anywhere in the world.”
    We have to study a yesterday if we have to build a happy tomorrow. History is an important tool of mental liberation; self definition and national advancement. Africans must move away from a partnership of horses and riders in which Africa’s people have long been horses, while their “partners” were comfortable riders.

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