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Rights: Should South Africa trade freedom for food?

On 9 May 1996 the constitutional assembly, chaired by Cyril Ramaphosa, adopted South Africa’s constitution. Utterly exhausted politicians, experts and staff sat on parliament’s benches, steps and walls, filled with relief that potentially disastrous deadlocks had been avoided; elation about a perceived huge achievement by a long-suffering country; and much hope mixed with a pinch of uncertainty about the future. 

The constitution included the world’s most advanced bill of rights. With decisions of the Constitutional Court, it was — at least for some years — globally celebrated and influential.

How are we doing a quarter of a century later? Only a few impressions fit into this space.

Regarding most of the civil and political, first generation or “blue” rights, we pass — with a qualified audit. To protect the rights to life and dignity, capital punishment was abolished, giving me great pride during a visit to the Angola prison’s execution chamber in Louisiana in the United States. 

We have probably more freedom of expression than at any other time in our history. Even though politicians often malign the media and target journalists, our leaders are mercilessly criticised. We are free to move around. Those with the resources get passports and see the world. Progress has been made on equality, although race is not an obsolete concept.

Political parties campaign freely. Leaders are not poisoned and activists not imprisoned. We have regular, substantially free and fair elections. The fact that the same people, who put their lives on the line in protests against poor service delivery, repeatedly re-elect the government they protest against, is not the fault of the constitution. Our apartheid history and the staleness of a party political landscape without original ideas might be to blame.

Make no mistake, looking around the globe, we have ample reason to be thankful.

There are blemishes in the blue rights area though. Police brutality occurs more than a constitutional democracy based on respect for human dignity should tolerate. Marikana caused a deep wound and perhaps permanent scar.

As to the rights of arrested, detained and accused persons, criminal trials generally seem fair. But court processes are slow. Dilapidated prisons are overcrowded. Approximately 48 000 of our about 141 000 inmates have not been sentenced for any crime. Some have been awaiting trial for months or years. The prosecuting authority has been in disarray for long. Many police investigations fail or never take off. Crime is rampant. Trust in law enforcement is low, leading to more crime exploiting the glaring gaps in the system, as well as to the horror of murderous vigilantism.

Furthermore, the constitutional guarantee of access to courts, to enable all to enforce their rights, means very little to very many. Justice is denied for millions more than the proverbial “poorest of the poor”.

The inclusion of socioeconomic, second generation, or “red” rights in the constitution was heavily debated. It was argued that the protection of civil and political rights only, especially property, with no reference to housing, healthcare, food, water, social security and education, would result in a “bill for whites”, rather than a bill of rights. 

The older Limpopo woman carrying water on her head and walking kilometres to the mobile clinic for pain tablets has little interest in controversial art on the stage of the State Theatre. On the other hand, false promises clothed as enforceable constitutional rights could delegitimise an entire bill of rights. 

When Joe Slovo, then the housing minister, promised a million houses in five years, Evita Bezuidenhoudt asked: “Don’t you mean five houses in a million years?”

Relying on international law, we broke new ground among respectable, honestly intended constitutions by including these rights in carefully formulated wording. Court victories were won for health care (in the Treatment Action Campaign case) and for housing (in Grootboom’s case). Cases without merit were, however, lost by opportunistic lawyers — often at the cost of the trust of poor people who filled the Constitutional Court with hope in their tired eyes.

Glaring evidence shows failure on the red rights front. The government was dragged to court to get books to schools, some of which are in a terrible condition. Thousands of informal settlements all over the country show that millions do not have proper housing. Grootboom died before moving into her house. 

Big families are expected to maintain social distancing in severely crowded townships and homes and told to wash their hands with a sanitiser … because they have no running water. 

According to Operation Hunger, millions are starving, their immune systems weakened. Whereas we have not done badly with Covid-19 restrictions, the dean of a medical school calls the vaccine roll-out “a dismal failure”, deserving a grade of two out of 10.

Young academics call themselves “constitutional abolitionists”. But constitutions and courts cannot deliver housing, food, water, medicine and schools. Who can?

The “Chinese narrative” of human rights and democracy is often discussed these days. China has allegedly successfully lifted 750-million people out of poverty since opening up in the early 1970s. Red rights have to a large extent materialised. At what cost though? 

As far as we hear, civil and political rights and freedoms, such as freedom of expression and to information, have been sacrificed. A powerful central controller could not tolerate debate and disagreement while fighting material misery.

Are people better off with food and houses than with the right to speak, write, read, protest and mobilise? Should we trade some rights for others?

Canada and Scandinavian countries have managed to protect blue rights while putting decent social welfare programmes into place, but they never had to deal with extensive poverty. South Korea and Singapore have achieved some success.

Rights are interdependent. Extreme poverty renders the rights to life and human dignity meaningless. The twin evils of poverty and inequality can destroy a society. But, how does one fight for employment, housing and healthcare without the right to speak out, organise and protest? Trust the possibly well-intended transformation programmes of an autocratic regime? How would we know the intentions without a free flow of information exposing corruption (the death in the pot), or bungling? 

To find a benevolent dictatorship or autocracy is not easy; to keep it benevolent, impossible. Karl Marx used the freedom of living in England to change the world.

Apartheid propaganda told the world that South Africa’s oppressed black majority were better fed than the masses in free Africa. But is a well-fed slave not still a slave? 

There is no quiet, easy road. The democratic struggle for all human rights has to continue or start anew.

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Johann van der Westhuizen
Johann van der Westhuizen, who assisted in drafting South Africa’s constitution, is a retired justice of the Constitutional Court, the founding director of the University of Pretoria’s Centre for Human Rights and a former inspecting judge of Correctional Services. The views expressed are his own

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