Op-ed: Why South-Africa's Bill of Rights does not work as it should
South Africa’s constitution is celebrated globally for its visionary Bill of Rights. It’s among a handful of countries which integrate economic, social and cultural rights alongside traditional civil and political rights as legally enforceable rights.
Its citizens are guaranteed the rights to vote, freedom of expression and a fair trial. They can also approach the courts when they believe that the government has failed to take reasonable steps to fulfil their rights to housing, health care, food, water and social security.
In this way the constitution recognises that all human rights are interrelated. Without material security and the means to a dignified life, many of the civil and political freedoms in the Bill of Rights will ring hollow.
Yet South Africa has, in many respects, failed to achieve a more socially just society. Millions of predominantly black South Africans are still excluded from the socio-economic benefits of democracy. It’s thus understandable that many – particularly young people – question the political and constitutional settlement negotiated in the 1990s.
As South Africa marks Human Rights Day – as well as the 20th anniversary of its constitution coming into effect – it’s a good time to take stock of the challenges it faces in making these rights a reality.
I address two key issues: the first is whether the Bill of Rights is itself an obstacle to achieving a more just society. The second is what lies behind the country’s failure to fulfil the promise of its constitutional rights.
An empowering legal framework
The Bill of Rights was clearly intended to provide an empowering legal framework for far-reaching measures of redress and transformation across all sectors of South African society. This can be seen in a number of the rights and values in this document.
During the drafting of the constitution the liberation movements were particularly concerned to ensure that the Bill of Rights facilitated the redistribution of land and other resources unjustly accumulated by the white minority during colonial and apartheid rule.
Besides requiring that the state make progress in realising everyone’s access to socio-economic rights, the property clause (s 25) of the Bill of Rights also requires land reform, restitution and tenure reform. It allows for the expropriation of property for a public purpose or in the public interest. This includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources. The compensation payable depends on a number of factors including the history and current use of the land.
Another important feature of the Bill of Rights is that it doesn’t only require the state to respect and fulfil human rights. It also places duties on private parties not to violate these rights. So, for example, private companies may not discriminate on grounds such as race, gender and disability, or act in ways which deprive people unfairly of their socio-economic rights such as housing.
Laws and programmes have been adopted to give effect to constitutional rights and there have been some internationally celebrated Constitutional Court judgments; such as the Grootboom case pertaining to government’s obligation to provide people with housing; and the Treatment Action Campaign, regarding HIV treatment.
Why is the country failing?
And yet, the reality for many South Africans remains one of poverty and social exclusion. Why is the country failing to translate these constitutional rights into reality? The reasons are due to a complex mix of factors.
Fundamentally, South Africa hasn’t been proactive or effective enough in achieving a more just redistribution of resources. Here both public and private institutions are falling short.
In the public sector, a strong, ethical and pro-poor public service is needed to regulate private power effectively and to take the re-distributive measures mandated by the constitution. However, there are strong indications that private wealth is gaining a disproportionate influence on the levers of state power.
When corruption becomes entrenched, government is no longer able to govern in the interests of society as a whole, particularly those most disadvantaged. Such developments undermine the state’s ability to dismantle the deeply seated structural barriers which prevent a more just distribution of resources in the country.
In the private sector many institutions and organisations have also failed to embrace the constitution’s transformative vision. This is illustrated in the Employment Equity Commission’s latest report which shows that the private sector has failed to redress the legacy of the past when it comes to employment. White people still represent 72,4% of those in top management levels in the private sector, compared to 10,8% for Africans. These figures are grossly disproportionate to the share of the economically active population of these groups.
A living politics
At the end of the day the rights in the Bill of Rights are simply words on paper. To have real meaning they must be supported by a living politics anchored in the constitution’s foundational values. These values are democracy, the rule of law, accountability and transparency, human dignity, non-racism and non-sexism. And placing the impoverished and marginalised at the centre of society’s concern.
If South Africa’s constitutional project is to survive the next 20 years, it must involve a re-commitment by all sectors of society to these values. They are integral to the post-apartheid transformative project. If the country allows these values to die it will be confronted by more than just a chasm to be bridged. It will face an abyss in which all its people will be lost.