Wednesday, September 21, 2016

Visiting the Constitutional Court

[Update: Hi guys! Normally updates will be Tuesdays and Sundays, but my internet went down here last night. So with a slight delay for technical difficulties... here is your update!]

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On my second day of work, the very first thing LHR did was pack up and take a quick little road trip to Johannesburg to see the Constitutional Court (CC) with some of my new colleagues from the Joburg office. I am going to admit my bias to you immediately: I really, really like this courthouse. I initially sat down wanting to write to you about all the geeky parallels between the Canadian and South African legal systems… then promptly realised that there was no way you wanted to read a full essay on a Tuesday night.

(But look at how the Living Tree is mirrored in -
No Kenna, let it go.
Look though! The methods used for Truth and Reconciliation in both –
And the symbolism!
Drop it, you’re going to lose them.
… Ok ok ok ok.)

So instead, here is the abridged version!

South Africa is unfortunately infamous for apartheid. Apartheid was very evidently atrocious, and there is no shortage of horror stories and nightmares to come out of that period of history. As a nation South Africa came out of apartheid under Nelson Mandela very consciously, and with a clear purpose. The purpose was to create respect and equity between the myriad of difference peoples present here, and it seems to have generated an ethos that has popped up consistently throughout my first week here. The single greatest example of this ethos that I’ve found so far is the CC, so please bear with me while I gush about it a little.

For starters, the CC is built right on top of the prison site initially used to house Ghandi, and Nelson Mandela after the Rivona Trial. The court was built there intentionally, and it is probably the single greatest reminder of apartheid onsite. Not only can you tour it as the Apartheid Museum, there are sections of the prison still there.

Looking up at one of the old fort watchtowers through the trees in the courtyard, in front of the Constitutional Court.
Several of the watchtowers that were originally part of the prison fort have also been maintained, and they are now a part of the courtyard in front of the court. They are imposing, but they also have speakers hooked up to them that play music. I don’t know if it was a local children’s choir or tribal music or what, but it was very happy and very African. So much so that I turned to another one of the interns from Canada and said “Man… I wish our court sang to us!”. She agreed heartily.

So. Many. Official. Languages.
And I bet you thought listening to the boarding announcements for Air Canada in two languages was bad...
Notice anything about the 'B' from Bolokolohi? The official script of the CC actually adopted it. If you check out a larger version of the above photo, you can see it used there as well. 
The front of the courthouse itself has ‘The Constitutional Court’ written out in all 11 official languages. (Yes, you did read that correctly. There are 11 official languages here. Government offices must be able to operate in at least two of those. There is some negotiation as to whether or not this actually happens.) There is also a slab of stone that runs along the side of the courthouse with the signature of all 11 of the original judges to sit on the court. That signature in the bottom right that seems almost like a child wrote it? That is Justice Bolokolohi, and shortly after being appointed to the court he began to lose his sight. For the record, blindness did not stop him at all. He continued to serve the court faithfully until retirement. This man was on a mission.

So much diversity and inclusion went into this building. I haven't even started on the brail, guys.
As you enter the courthouse you step through these hugely tall, carved wooden doors. If you’re curious about the hands that have been carved all over the doors, they are sign language. There are 27 rights enshrined in the constitution, and each has a distinct sign in sign language that was incorporated into the door. The doors stand open year round, and the whole building is publically accessible with free tours. Now, my understanding is that tours and open doors are a pretty common thing with common law courts. I suspect it’s less common that the foyer to the courthouse is meant to be a public gathering area though. Part of the court being a public gathering area means there has been a huge amount of art donated to the building, and there is a gallery connecting the actual courtroom to all the other public offices, and the library.

I have soft spot for the tree pillars guys. Also, please note the wall behind the trees with photos of all the Justices who have sat on the court. 
Once you’re in the foyer the other main theme of the courthouse really starts to shine, and that’s ‘justice under a tree’. The idea being that traditionally many cultures in Africa would come together under a tree and decide how to proceed when there was a problem. The ritual was meant to involve everyone in the community in solving a given problem, and part of that involvement was the idea that by being a part of the solution, everyone was more invested in coming together to see it realised. I really like that idea, and it comes back strongly through the process judges undergo to sit on the CC.

So, how do judges make it to the CC, you ask? Well first off, they don’t actually need to be lawyers. (It’s ok to have a bit of an internal freak out when you read that. I definitely did.) Seriously, a judge on the highest court in the land could have never taken a course in law in their life. Initially that shocked me in a very negative way. How could anyone hope to understand the full ramifications of their decision without a legal background?! It seemed reckless and irresponsible, the judgements that come from this court are binding on an entire nation! The more I thought about it though, and let it settle… it actually doesn’t seem like such a terrible idea. In no small part that is because the selection process is (supposed to be) incredibly rigorous.

The ladder art piece represents the transition out of apartheid, and that third rung from the top is actually an elephant bone. The slogan lit up in light came back to SA with the MK movement, and is actually a transplant from Portugal because that's where many of the MK spent time when they were abroad. 
(For brevity this is a very loose outline of the process:) Once a candidate has nominated himself or herself to sit on the CC, they are placed under the scrutiny of a massive panel. The panel consists of teams of experts in various fields. There are academics, community leaders, politicians, legal experts… to name a few. Each candidate is then put through the wringer on explaining their reasons for wanting to sit on the court, and proving their competency to each team. Candidates are picked apart academically, personally, politically, legally, etc. before a list of qualified candidates is approved. What the end result is is a panel of judges hearing your case with vastly different backgrounds, and a significantly lowered barrier to entry than something like the Canadian judiciary. That has had some very cool impacts on the diversity of the court, and for keeping public trust in the justice system itself. That appointment process cuts away the sense of distance between something like the CC and the vast majority of the population. My little grinchy lawyer heart grew three sizes when I realised the significance of that appointment process. It was a good moment.

Remember that the CC is built right on top of the old prison site? They literally took apart the prison, brick by brick, and used the materials that made the prison to construct the courthouse. Not because they were short of funds, either. The old bricks were used because the architect wanted to recognise that apartheid could not be undone, but it could be learned from and used to build a better future. The theme of rough, old prison bricks next to smooth and freshly mortared bricks, is present throughout the whole building.

Looking down from the top of the African Steps, which run between the (now) Apartheid Museum on the left, and the new CC on the right. 
As you approach the CC up the African steps? Prison bricks at the bottom transition to new bricks towards the top. The remains of the prison, now a part of the Apartheid Museum, are on one side and the new courthouse on the other. The juxtaposition is intense.

In the courtyard in front of the CC? The courtyard is a distinctly different colour from the brick everywhere else underfoot, and that’s because they’re also from the old prison.

A somewhat fish-eyed look at the transition from prison brick to freshly plastered drywall at the CC. 
The CC itself? Oh yeah. The courtroom where the court sits is one big transition from rough prison brick, through newly pressed and mortared brick, to a cleanly plastered and painted wall. You can see the cleanly plastered wall on the left, and the oldest brick on the right.

Looking at the bench of the CC. 
I really like that about the courtroom itself, but I haven’t even gotten to where the judges sit yet, and that was kind of a big deal to me. It might actually be my favourite. First off, each judge sits behind a unique Nguni cow-hide. These are very prized by many African nations, and signify the diversity of the bench. A clerk sits below each judge, and the only assigned judge’s seat is for the Chief Justice. There is a lot of controversy about the current Chief Justice, and if you’d like to engage in some critical thinking/eyebrow-raising here is a link that sums the controversy up nicely.

Back to the building though: One of the most significant aspects of the CC is how flat it is. This is not a courtroom where counsel looks up to make their submissions; they stand at eyelevel with the seated Chief Justice. The long window that runs around the edge of the court is also meant to be a reminder to judges as they sit and hear cases. Through the window you can only see the legs of people walking past, from about mid-thigh to mid-calf. This is meant to be a reminder that it doesn’t matter who the person walking outside is, they are a person, equal to others, no more and no less. The justices also sit beneath the level of the sidewalk outside, and that is a reminder that their position is one of service to the people. The bench is not for dictators, and there is great responsibility that comes with the power of the position.

That looooooooong thin window is the one that is meant to remind the Justices of the service they are doing, and the humanity of each individual case they hear. 
Guys, I could literally go on about this building for pages. The takeaway is that it’s pretty amazing, and I am a huge fan of the thought and effort that’s gone into it. That doesn’t mean that everything here is sunshine and daisies, the racism that fuelled apartheid is much deeper, more complex, and less institutional than I was expecting. To weigh in on any of that right now wouldn’t make sense though. My understanding of the history and the issues here is still grossly shallow, and I don’t think it’s really even possible for me to say anything with real meaning about it at this point. So instead, here is the beginning of something I’d like to include in each post moving forward:

Local Context
1. Here is a very cool (short) article on the emerging African fashion scene. When this article popped up it kind of made my day, because a news source as big as the NY Times was publishing stories about Africa that focused on good news. You're going to be seeing as much of this as I can get my hands on in the future.

2. Here’s another (very short) article aboutsome of the youth activism that is taking place right here in Pretoria. The young woman behind this movement has taken the media by storm, and kudos to her for tackling an issue that plagues people of colour, and women in particular. There have been larger international news sources to pick up this story, but this piece actually has video from the day of the protest, and I think that is infinitely more powerful than any second-hand news account. 

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