Fourteen years ago, our freely elected representatives adopted the Constitution — in part to “free the potential of each person” and “heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”.
So it is strange that Jimmy Manyi, the president of the Black Management Forum (BMF) and director general of labour, asks why it seems “that the Constitution does not support the transformation agenda of this country”.
On the contrary, transformation lies at the heart of the Constitution and is its raison d’être.
This is at the basis for the launch on Friday of SECTION27, a public-interest organisation that will influence, develop and use the law to protect, promote and advance human rights. Its name is drawn from the Constitution because we view it as central to the transformation of South Africa into a “democratic and open society, in which government is based on the will of the people and every citizen is equally protected by law”.
For 17 years the Aids Law Project has used legal research, litigation and human rights advocacy to push the government and private sector to recognise the need for a rights-based response to HIV/Aids and to develop appropriate plans to prevent and treat HIV infection.
The success of that approach informs the creation of SECTION27, which will incorporate the Aids Law Project. SECTION27 will retain a strong focus on HIV and healthcare, building on the role of the Aids Law Project in creating a comprehensive rights-based legal framework for HIV. But it does not mean that SECTION27 will “mainstream Aids into obscurity”. We will continue to place the lives of people with HIV at the centre of our work on health access.
But our transformation agenda will include socioeconomic rights more broadly and the legal and political conditions necessary for sustaining rights under the rule of law.
Manyi, speaking at the BMF’s constitutional symposium last week, expanded on his view of the division between the Constitution and transformation: “We are yet to see the government taking issues of a transformational nature to court and winning them.
“Every time the government takes a case of a transformational nature, it is sure to lose that case and, as it does so, the Constitution is cited.”
But President Jacob Zuma, delivering the keynote address at the same event, struck a different note. He talked about how the Constitution “furthers the objectives of socioeconomic transformation”.
In his view the Constitution “is a sacred document that guides our constitutional democracy”.
Zuma spoke about the need “to further enhance the enjoyment of the rights enshrined in the Constitution” and recognised the role played by the courts, noting that “we should not be rigid in our definition of the doctrine of the separation of powers — This would limit the potential intervention by the judiciary to protect socioeconomic rights.”
Despite the positive thrust of the president’s speech, he too referred to the Constitution as a tool that can be used to block transformation. To him, those who “abuse our progressive Constitution to maintain glaring inequalities” show no respect for it.
We, too, are concerned when the Constitution is invoked to undermine progressive change. We, too, have experienced how the abuse of court processes frustrates the attainment of social justice.
But in our view it is not just those sitting in opposition or wielding private power who disrespect the Constitution from time to time.
In recent years, particularly under former president Thabo Mbeki, the government itself was guilty of the conduct Zuma ascribes to others. All too often the executive has tried to hide behind the separation of powers doctrine in urging the judiciary to adopt a regressive interpretation of the Constitution.
We are fully aware that those with vested interests often invoke our supreme law as they seek, at the expense of the poor, to entrench their privilege. They do so because the extent to which the Constitution imposes obligations on private parties to realise its vision remains one of the least-addressed aspects of our new legal order.
But it is wrong to dismiss the resort to law by those with whom we differ politically as an abuse. What we must do, as Zuma suggests, is to ensure that the poor have access to justice — that “the central beneficiaries of this Constitution — [are] the workers and the poor who had no access to such rights before”.
In part this involves the provision of legal services to those in need. But increasingly it involves communities engaging the state on how best to create a just society — strengthening participatory democracy at local, provincial and national spheres and ensuring open and accountable government that both understands and respects the Constitution.
SECTION27 will help the poor and marginalised to achieve these goals. South Africa has a long tradition of using the law for progressive social change.
We will continue to engage constructively with the government about its legal duties but, where necessary, we will use litigation and other forms of legal action against those who wield public or private power.
The durability and relevance of the Constitution depends on the extent to which it is seen to improve the lives of the poor and most marginalised. The ability to do this depends on ensuring that the government respects the rule of law and its legal duties and that private power understands that it, too, has positive constitutional obligations.