Steven Friedman
Worm’s Eye View
Politicians can – and should – pass laws extending our rights. But only citizens can – and should – ensure that we use them. For some, the four Bills struggling their way through Parliament signal an ambitious government attempt to create a new society. They deal with core issues such as preventing discrimination, racial redress in business, access to government information and administrative justice.
So they can, and no doubt will, be portrayed as a wide-ranging attempt by the governing party to confer rights on citizens.
On one level, they are nothing of the sort.
Broadly, the rights they “extend” have been available to citizens since the post- apartheid order began.
The Constitution grants us the right not to be discriminated against, to be informed by government and to be treated fairly by it. Racial redress is not a constitutional right, but it allows measures designed to achieve it.
So why all the fuss? Because constitutional rights are general and vague: as we have seen over the past few months, there are heated debates on what they mean. Had they simply been stated in the Constitution, it would be left entirely to the courts to define them.
And, since interpreting rights is usually a matter of opinion rather than legal training, it is preferable, in a democracy, that they be given meaning as much as possible by people who are responsible to voters.
The Constitution therefore gave Parliament until early next month to specify what the rights mean – which the Bills aim to do.
That inevitably means not extending rights but restricting them: saying what rights mean is to say also what they do not mean. We can see this in the wording of the Bills and the dispute about them.
The new laws tell us that the right to information does not apply to Cabinet documents: it can also be denied if it interferes in the running of government or on a host of other criteria. The ban on discrimination, after much bargaining, does not apply necessarily to HIV/Aids victims or those who cannot pay for goods and services; redress does not automatically entitle victims of past discrimination to government contracts, but favours them only under particular circumstances. And, as the opposition continually complains, they also give the government the right to demand information from citizens.
So the Bills could be seen as an attempt not to hand out rights but to limit them.
That, however, partly misses the point.
As long as this Constitution remains in force, Parliament cannot take away rights, even if it wants to, because anyone who feels a law is removing rights granted by the Constitution can challenge it in court.
But rights are never absolute – free speech does not mean the right to incite murder – and it is therefore impossible to implement them without deciding the circumstances in which they do and do not apply. And that means limiting them.
So the real importance of the Bills is not that we will soon have rights we did not have before but that, for now, those rights are being defined by Parliament, not judges.
Without the Bills, judges could, in principle, decide on issues such as the criteria to be used in granting government contracts or whether chief executives should reveal their salaries in public. We are surely better off if questions like this are decided, as they have been over these past weeks, by debate between the people’s representatives.
The case for leaving the courts out of some of the other issues raised by the Bills is far more shaky. Citizens should not have to depend purely on a parliamentary majority to decide how much they should know about what the government does. Some clauses in the Promotion of Access to Information Act are themselves vague – information can, for example, be denied if releasing it harms the country’s “economic interests”; this is one issue on which courts which are doing their job should act to protect our rights.
In principle, the Bills change nothing since the courts can still decide on any of the issues they address. But courts which are sensitive to the difference between protecting basic rights and deciding on public policy issues will exercise their judgment, staying out of procurement policy, intervening where the government denies our right to know. The Bills are, therefore, an important potential test for the judges.
But they are also a test for politicians. Laws granting rights mean nothing without action to ensure that they are exercised. The challenge of ensuring that citizens enjoy rights in practice is particularly strong in this society where sharp inequalities ensure that some are far better equipped to exercise rights than others.
Take the Administrative Justice Bill, which entitles us to fair treatment from officialdom. Those most in need of the right are the poor, who are least able to protect themselves from official neglect or abuse; those most likely to use it are the affluent.
One irony of the post-1994 order is that measures designed to give citizens greater access to decisions are used exclusively or overwhelmingly not by the formerly rightless whom they are meant to empower, but by the affluent or the well-connected.
Not only are parliamentary committee hearings dominated or monopolised by those with resources and organisation. Procedures established by, for example, Gauteng’s legislature to give citizens the right to petition government are used mainly by the affluent; labour law barring workplace discrimination was, at least until recently, used only by white men.
White men – or suburbanites – are as entitled to rights as anyone else. But if they, and they alone use them, we are making no progress towards a fair society.
The government has still not found ways to ensure that opportunities to participate and claim rights are spread more evenly; the Bills will be an empty gesture unless it makes a conscious effort to ensure that everyone who needs to use them, can.
Finally, the Bills are a challenge to citizens, particularly those who believe that everyone, and the poor in particular, are entitled to rights.
However seriously the government takes the Bills, it is naive to expect that it will ensure that everyone denied information or administrative justice claims it. That task will fall to activists, NGOs and movements that work among grassroots citizens; it is they who will have to ensure that possibilities created by the law become realities.
So the Bills do not automatically usher in a new era. But they could take us closer to one if the courts, the government and citizens see them as a beginning, not an end, of an attempt to create a stronger democracy for all.