We are rapidly approaching the end of the first decade of rule under a written Constitution that aims to provide a meaningful framework for the construction of a resilient democracy.
Unquestionably we have made strides in the direction of the kind of human rights society that is the essence of the Constitution’s ambition.
There remains, however, a significant gap between the lofty promises of human rights for all as contained in the Constitution and the turbulent realities confronted by many South Africans in their ordinary lives.
In this column, I want to confine myself to three separate goals, even the partial attainment of which would serve to bring daily reality into alignment with the constitutional promise.
The most pressing problem remains the way in which violent crime continues to destroy communities. In particular, the murder of children most recently in the gang-related violence on the Cape Flats and the levels of rape make a mockery of the constitutional guarantees in favour of gender equality and children’s rights.
The knee-jerk reaction of politicians to crime is directed toward the imposition of heavier sentences and the judiciary for not meeting the demands of the ‘lock-them-up-for-life” lobby. By contrast, far too little attention is given to the reconstruction of the squalid conditions that characterise township life.
When shebeens represent the only form of recreation, when living conditions can only promote aggressive behaviour and when children have no facilities simply to be children, it is hardly surprising that a gang culture maintains hegemony in these areas.
If you are in favour of ‘imprisonment as a solution” consider the following: prisons in this country are hugely overcrowded. As at the end of last year our prisons were 163,51% full. The growth in the prison population between January 1995 and last December was measured at 55,15% — there were 116 846 prisoners in January 1995 and 181 290 in December last year.
In short, putting more people in prisons will necessitate a major programme of building new prisons, the cost of which will be between R40-billion and R50-billion.
Surely this revenue would be better spent on an urgent process of urban and rural renewal, which in turn could be accomplished by a public works programme. This would give employment to many who, at present, are but fodder for gangs.
The second priority would be to educate the population about the nature and content of the Constitution and its implications for ordinary people. There is scarcely any use made of radio and television to bring the promises of the Constitution into the homes of citizens. Apart from some analysis and discussion on Human Rights Day, little of similar educational value appears in newspapers or in the schools. Contrast this position to that of the United States, where schoolchildren are taught about their Constitution.
How many of you reading this column would, in all honesty, be able to explain the scope, content and ambition of our Constitution to your children?
This issue is important, for without knowledge of the considerable range of rights designed to protect individuals, ordinary South Africans will effectively be disempowered. Correctly, much is made of the failure of the government to deliver basic goods and services, the availability of public revenue notwithstanding.
Delivery will improve when democracy is vibrant at the point of delivery so that the intended recipients are able to hold the relevant level of government responsible. The more public human rights education that takes place, the more likely it is that a greater level of activism will ensue.
The third and final challenge in this column’s wish list concerns the need for an intelligent debate about the transformation of the judiciary.
As has been noted in previous columns, the problem of a judiciary that reflects the nation’s demography has partially been addressed. Within the limits of available human resources the number of black and women jurists who are now part of the country’s judiciary has increased exponentially, even if more must be done, and quickly. But less has been done about changing the judicial mindset that so shaped apartheid jurisprudence.
Sadly, for example, recent offerings of the Supreme Court of Appeal, in cases such as Brisley v Drotsky and Afrox Health Care v Strydom, reveal a continued affection for a common law that remains incongruent with the spirit of the Constitution. Is it too much to expect that the Judicial Service Commission at its next hearing will initiate this kind of debate before it makes recommendations for appointments?
Of course there are many other challenges that require attention but at least we should make a start on a list of publicly debated priorities.