Double standards: South Africa has a very progressive Constitution that
The year 2015 is a momentous one for the South African Human Rights Commission: it marks two decades of this national institution’s existence. It is also the year in which the millennium development goals will lapse and a new framework will have to be crafted.
On February 20, we will celebrate the world day of social justice – a day promoting efforts to tackle bread-and-butter issues such as poverty, unemployment, homelessness, gender inequity, and unequal access to social wellbeing and justice.
Perhaps it is also time to consider how far we have come in ensuring that the ideals enshrined in our Constitution have been turned into realities. Although significant strides have been made in the area of human rights, many challenges still need to be resolved. In the light of this, the commission has adopted the right of access to justice as one of its strategic focus areas.
The right of access to justice is recognised in international, regional and local frameworks governing human rights – in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights and South Africa’s Constitution. The crux is: there cannot be equality and human dignity if people have no access to justice.
The United Nations’s special rapporteur on extreme poverty and human rights, Magdalena Sepúlveda Carmona, called for the inclusion of access to justice as a stand-alone goal in the post-development agenda, “because we cannot meaningfully tackle poverty in a context where there exists a two-tier rule of law: a secure reality for the privileged and only a rhetorical aspiration for the poorest and most disadvantaged”.
These profound observations highlight the fact that access to justice is a human right in itself and is essential for the realisation of a range of other civil, cultural, economic, political and social rights. It unlocks the other rights in our Constitution.
The right of access to justice enables the economically and politically marginalised to protect the inalienable rights that they have but are yet to enjoy. It is not only about protecting and improving the livelihoods of people living in poverty, but also promotes people’s capabilities, choices, security and power. Having access to justice helps address the marginalisation of vulnerable groups in society – those who suffer socioeconomic hardships, discrimination and general human rights abuses.
The commission’s access to justice programme therefore aims to alleviate the plight of all vulnerable groups. It has also joined hands with government and civil society organisations to increase awareness of and physical access to the Constitution, premised on the notion that the right of access to justice is a human right.
Access to justice will remain a dream as long as the privileges attached to race, class and gender remain unaddressed and the quality of services continues to be shaped by who you are and where you live, and opportunities continue to be largely defined by race, gender, ability, geographic location, class and linguistic background.
Among the stakeholders who could help realise the right of access to justice are the state, the judiciary, the legal profession, paralegals and community-based advice centres, law clinics, the law and education faculties at South African universities, and nongovernmental organisations such as the Foundation for Human Rights and the Know Your Constitution Campaign.
The commission has established an expert advisory committee of stakeholders to help ensure that the huge disjuncture between human rights rhetoric and human rights reality is addressed in a holistic way.
The committee will explore the definition of access to justice with reference to the commission’s mandate, identify critical issues and gaps in this regard, and explore possible solutions to help marginalised people gain access to justice in a constitutional democracy within the framework of the law.
Hence, we need to ensure that all of us put our shoulders to the wheel to ensure that the right of access to justice, which is an important constitutional tool for the enforcement and realisation of all the rights enshrined in the Bill of Rights, is achieved. As the late Dr Martin Luther King Jr said: “Injustice anywhere is injustice everywhere.” We must all realise that human rights can atrophy and become hollow shibboleths if the very people to whom the rights belong are not able to access them. It is illusory to have a high-sounding Constitution affording everyone rights that very few are able to access and exercise.
This is why the commission is calling on all freedom-loving South Africans to join us on this journey to “transform society, secure rights and restore dignity”. For without rights, there can be no freedom; and without freedom, there can be no development; and without development, there can be no transformation– and without transformation, there is no dignity or social justice.
Mahamed Ameermia is a commissioner at the Human Rights Commission responsible for the rights to housing and access to justice