THE HUMANE EDUCATION TRUST

INCORPORATING COMPASSION IN WORLD FARMING (SOUTH AFRICA) AND ANIMAL VOICE

6th February 2006

Dr E A Schoeman

Chairperson of the Joint Constitutional Review Committee

New Wing

4^th Floor

Room E447

Parliament

P O Box 15

Cape Town

8000

Dear Dr Schoeman,

Whilst I accept that the South African Constitution is about human rights and not animal rights, I respectfully ask you to consider the possibility of including a ‘duty of care’ for the environment and animals.

My case is based on a number of important legislative and ethical points. Firstly, there can be no rights without responsibilities. Indeed, our constitution already recognises this in other areas, for example, Section 11 includes a duty to protect life and Section 3 includes the duties of citizenship. Therefore, it is both inequitable and impractical to bestow upon ‘everyone’ the right to a healthy and sustainable environment without also giving them an individual ‘duty of care’ for this environment.

Putting the case into an international context, a ‘duty of care’ for the environment and animals is usually an integral part of the constitutions of ethically developed countries around the world. We also now have international obligations in respect of both the environment and animal welfare (under the International Organisation for Animal Health – the OIE) that need to be recognised by the country. It is unacceptable and anachronistic for South Africa, which is often seen as a moral leader in the international community, to fail to recognise the sentiency of animals and the duty of its citizens to care for animals and the environment when it is supporting such initiatives at an international level?

Another important legal consideration is that the total absence of any mention of the need to protect or care for animals in the current constitution could actually have the effect of negating large parts of existing animal protection law (both the national Animals Protection Act 71 of 1962 and provincial laws). This is because without any constitutional ‘ranking’, animal protection interests would be denied wherever they conflict with other constitutional objectives. This is not speculation – it has already happened in some countries. For example:

Ø Austria: in July 1998, Austrian artist Hermann Nitsch stage-managed a macabre public slaughter and disemboweling in the name of art. This involved naked participants dancing in animal entrails and drinking their blood. As ‘freedom of artistic impression’ was included in the Austrian constitution (and animal protection was not at that time), the authorities did not consider it possible to interfere with this constitutional right, despite comprehensive animal protection legislation.

Ø Germany: Germany had similar conflicts between its comprehensive animal protection law in the animal experimentation field. A German constitutional court ruling in July 1999 stated that the principle of animal protection (e.g. when in conflict with constitutional rights such as scientific and educational freedom, artistic or religious freedom) could only function when animal protection had a constitutional ranking. Thus, any abuse of animals would go unpunished if it conflicted with even whimsical or arbitrary use/abuse in the name of science, education, art or religion… Germany subsequently amended its constitution to include animal protection.

The same situation would apply in South Africa where various constitutional ‘freedoms’ could override animal protection law. Examples of this would be freedom of religion, belief and opinion (Section 15) and freedom of expression, which includes freedom of artistic creation, academic freedom and freedom of scientific research (Section 16).

In the light of the above, I do hope that you will reconsider your position as regards the South African constitution. A simple amendment could be to include: -

Ø A recognition that animals are sentient beings

Ø Wording along the lines of: ‘Prevent practices that cause animal suffering’ in the existing environmental provision

Ø The addition of a ‘duty of care’ after this amended paragraph on the environment

I recognise that the proposed amendment would infer no additional legislative responsibilities on the government. However, it would underline the individuals ‘duty of care’, which would be instructional and educational.

A stark example of the need for this ‘duty of care’ is the recent tragedy of the needless fires that ravaged the Cape this summer as a result of cigarette butts being thrown out of car windows. Massive destruction of the environment – and a human life – as a result of a selfish lack of care?

I enclose for your kind attention the latest issue of our magazine, Animal Voice. As you will see, the centre-spread of the magazine includes an article by senior UCT academic, Dr Helgo Schomer. He believes that animal cruelty and suffering leads to a ‘soulless, heartless’ society.

I do hope that you share my belief that South Africa needs to develop as an ethical and holistic society – a real moral leader in all senses - and will reflect this in an appropriate amendment to the constitution.

We thank you for your consideration of this letter.

Sincerely,

Janice Cox Louise van der Merwe

Trustee Managing Trustee

P O Box 825, Somerset West, 7129, South Africa

Tel/fax: (021) 852 8160 E-mail: [email protected]

Web site: www.animal-voice.org

The Humane Education Trust is a registered charitable trust, Registration No. IT450/2001