Mind the gap: Constitutionalism could become a language that
institutions speak well but the people it is meant to protect don’t understand it. Photo: Constitution Hill
Many people say that South Africa’s Constitution changes their lives. But for the poor, change is starting to feel more and more like legal recognition without any real change.
Rights are confirmed, violations are made illegal and policies are changed, yet the situation of inequality remains largely unchanged.
This doesn’t mean the ideas behind the Constitution have failed. It is a failure of how the ideas are put into action.
Our Constitution is good at finding people who break the law. It is much less effective at fixing the damage that the violations cause. This means changing policies and procedures and setting deadlines.
People don’t often talk about the harm that has been done to people who went through years of deprivation, while the government didn’t do anything about it.
In practice, equality often means that the rules are followed fairly and justice has been done.
This idea doesn’t work in a place like South Africa, where there is a lot of inequality.
Things like historical dispossession, spatial exclusion, administrative neglect and institutional failure that never go away make poverty worse.
Being neutral about unfair situations doesn’t help; it makes them worse.
The dynamic is clear in lawsuits about social and economic rights. If housing projects or basic services stop working, the courts might have to step in and fix them. But most of the time, the fixes are for the future.
They want to make the system better in the future but they don’t say much about what should be done for the people who had to pay for the long-term failure.
A community that had to wait 10 years for housing didn’t just sit around. Children grew up without a safe place to live. Families had to pay for things that the state did.
The state of health, education and the economy got worse. Delivery was seen as the end of the harm, as if the law had been restored.
No, it didn’t.
This way of thinking shows a limited view of what it means to be responsible. The system believes its work is done when behaviour meets constitutional standards. But just because something is no longer against the law doesn’t mean it doesn’t hurt the Constitution. Poor people continue to suffer in social, economic and mental ways.
A restorative approach to constitutionalism would acknowledge this reality. It would recognise that equality must occasionally be rectified rather than merely maintained in a neutral state and that words alone cannot substantiate dignity.
In this way, restoration doesn’t always mean getting something back. It’s about taking responsibility for the harm caused by failing to act, ignore or delay something and acknowledging it.
This isn’t a case of judges going too far. The Constitution should be consistent. The Constitution makes it clear that it is part of a long history of unfairness and inequality in how things are set up. It doesn’t act like harm is an accident or will fix itself. But people who work in remedial practice often think that changing the law will automatically change how things are in the world.
It doesn’t.
The gap has big effects on politics. When poor communities’ rights are violated and nothing is done about it, they lose faith in the rule of law. Rights begin to appear as mere symbols. It looks like the courts are far away. Constitutionalism could become a language that institutions speak well but the people it is meant to protect don’t understand it.
Restorative constitutionalism offers a way out of this impasse. It changes how we think about accountability by making it not only legal but also fair and equal.
It asks whether remedies really help people who have been hurt, whether communities that have been hurt are treated as participants rather than passive recipients and whether constitutional success is based on results rather than intentions.
South Africa does not have a problem with a lack of a clear constitutional vision. It struggles to follow that vision all the way through.
In a society with big differences, justice can’t be fair. And equality that doesn’t make things better isn’t equality at all.
Nathanael Siljeur is a legal practitioner and researcher with a background in constitutional law, social justice and ethics. His work engages questions of accountability, institutional integrity and the intersection of law, public policy and human dignity. He writes in his personal capacity.