Ebrahim Harvey
CROSSFIRE
It sometimes unfortunately happens that a great event passes us by without much ado. This was the case when Judge Arthur Chaskalson, president of the Constitutional Court, delivered a milestone lecture on human rights at the third Bram Fischer lecture at the Civic Theatre a few weeks ago.
It would be hard to beat the symbolic significance of the event: the president of the Constitutional Court paying tribute to Fischer on the crucial issue of human rights. However, the real significance lies not in the symbolism but in the content of his lecture. Nobody from the government or the judiciary has before made such a powerful statement on human rights in South Africa. In this sense it was a revolutionary perspective on a subject which strikes at the heart of our deeply troubled transformation.
Judge Chaskalson said South Africa was in danger of not realising the vision contained in the Constitution and that it seemed we had temporarily lost our way. While the ruling party would probably argue with this assessment, it is clear that if we compare the human rights provisions in the Constitution with the actual socio-economic conditions of the majority of people, there exists a chasm that separates words from reality. Worse still, a chasm that widens all the time. But so it is with the Universal Declaration of Human Rights. The poverty of the majority of the world’s people is in stark contrast with the rights and dignities afforded by it.
The most important point Judge Chaskalson made was that urgent action had to be taken by the government to achieve ” equality of dignity” alongside “equality of rights”. He said the social and economic rights in the Constitution are rooted in respect for human dignity and that there could not be dignity in a life without food, housing and employment.
Although acknowledging that the government faces financial constraints, he said the “government must give effect to its obligations under the Constitution to show respect and concern for those whose basic needs have to be met”.
There can be no doubt that the appeal of the government against a ruling in the Cape High Court in December which compelled it in a particular case to provide homeless children with shelter influenced Judge Chaskalson’s strong views on the matter. The government opposed the ruling on the grounds that it could not financially afford to bear this responsibility. The Constitutional Court has reserved judgement.
This is the crux of the matter: on the one hand, section 28 (1) (d) of the Constitution obliges the government to provide shelter. But on the other, subsection 26 (2) states that it will do so “within its available resources”. This constraint could be extended to include all other social and economic rights, such as the right to work, food, health care and education.
This means that these rights, while enshrined in the Constitution, are not realisable if the government does not have the resources to give effect to it. And, in the meantime, the inability to satisfy basic needs worsens the material conditions, which deepens the social crisis.
If the government could appeal against the court enforcing the right to shelter for a few hundred homeless children, then how is it going to meet the many other basic but urgent needs and fulfil its electoral pledge of service delivery to the needy millions? Its appeal is a cruel mockery of our Constitution as the highest law of the land and its role as the supreme defender of it.
There are severe implications in the discrepancy between constitutional provisions and the inability of the state to deliver on it. First, it means that for the majority of our people who languish in poverty there is little or no hope that their basic needs will be met. Second, the growth of a meaningful democracy is at grave risk. Third, it questions the purpose of our struggle in the first place and the commitment of the ruling party to its leading slogan of “A better life for all”. Fourth, it demonstrates the serious limitations of democracy and human rights in a capitalist order.
While Judge Chaskalson urges the government to honour the social and economic rights contained in the Constitution he fails to raise, let alone address, the reasons it faces constraints which prevent it honouring those basic rights, whether government economic policies are responsible for this and why it does not make these rights its highest priority, especially in a situation where grinding poverty, a legacy of both the apartheid past and post-1994 economic policies, affect many millions of people.
The rights contained in the Constitution are meaningless if the government does not have the resources to give effect to it. It also requires an economic and developmental policy framework which facilitates giving effect to it. The big problem is that we have a capitalist deficit-driven and fiscally constrained macroeconomic policy framework which militates against the state meeting basic needs. That is the reason why the government appealed against the ruling of the court. It was afraid that it would set a precedent which would compel it to provide shelter to all homeless children. It is also likely that such a precedent would apply to other social and economic rights.
By piercing the democratic veil of the Constitution we can see the need to temper our joy at having one of the best Constitutions in the world with the underlying social reality which is joyless. Faced with this sharp contrast, the Bill of Rights in the Constitution is largely an exercise in democratic phrasemongering. It is worse when the government are the authors of it. While they cannot observe the right to shelter for children they are quick to enforce the protection of private property rights. In real terms it is the law of capitalism that is the highest in the land and not that of the “democratic” Constitution. This lies at the heart of the chasm between the words of the Constitution and the living realities.
But it is possible and necessary for those who lack the basic necessities to take the government to the Constitutional Court for failing in its obligations. The way to answer subsection 26 (2) is to socially and morally contrast that with the R32-billion the government will spend on unnecessary arms purchases and the reported R300- million it spends annually on protecting its officials, their children, offices and cars. Otherwise the Constitution is not worth the paper it is written on. Worse still it is a mocking insult to poor people whom it is meant to serve and protect.