OPINION| Are some rights more equal than others?

During a recent drive from Gauteng to the Cape I came across a bizarre scene, not uncommon in South Africa. Near Leeu Gamka, pretty much in the middle of the Karoo’s vast nowhere between Beaufort West and Laingsburg, a large truck transporting canned fish had overturned. A multitude  of people descended on the accident scene, not to assist the injured or traumatised, but to grab and carry off possibly thousands of cans in a variety of containers, bags and clothing.

Were they evil, greedy thieves or just poor? Did they see an opportunity for food on the table … and even to make a small profit by selling some to the neighbours?

This year’s celebration of Freedom Day on 27 April — the glorious birthday of our democracy — was not entirely an ode to joy. Several speakers and commentators opined that we had little to celebrate after

28 years of democracy, because of poverty, inequality, gender-based violence and other socioeconomic ills. 

In pointing out progress since 1994, President Cyril Ramaphosa mentioned that 81% of South Africans had formal housing. Thus more than 11-million people (about the entire population of Tunisia) do not. An estimated 12.7% (seven-and-a-half-million people) live in thousands of informal settlements all over the country — “shacks” in “squatter camps”, in politically incorrect insensitive language. This leaves 5.4% (about 3.2-million), well, somewhere or nowhere.

Poverty — together with its even nastier twin, inequality — lies at the heart of our problems. It is an important cause of crime, domestic violence, drug and alcohol abuse, as well as the lack of any purpose in life for many young people, other than the primaeval instinct to survive at the cost of others.

We are the world’s most unequal society. The Gini coefficient measures the income gap between a country’s wealthiest and poorest and ranks South Africa highest in the world, worse than Namibia, Zambia, the Central African Republic and Mozambique. The richest 10% hold 71% of the wealth; the poorest 60% just 7%. More than half of the population lives in poverty. We have reportedly more welfare recipients than taxpayers.

Who is to blame? I do not comment on economic policies. Obviously centuries of oppressive colonialism, topped by decades of formal apartheid, caused inequality. According to cynics (not this retired judge, take note), the government succeeded spectacularly in lifting at least a part of the population out of poverty, namely their family and friends. “Charity begins at home,” the saying goes.

There is an unfortunate and perhaps denialist tendency to blame the Constitution and courts. Our Constitution is world famous, especially because of its inclusion of civil and political as well as socioeconomic rights. And, let us be fair, on the civil and economic rights front, we have much to be thankful for and even proud of, compared with many other countries. Fair and free elections have regularly taken place; freedom of speech, the media and political activity is higher than ever before; and fair trials take place before independent courts. The last-mentioned has to be qualified by the below-par performance of the police and prosecuting authority — and, of course, by the lack of access to justice for millions. Therefore, back to poverty. 

The Constitution and courts cannot build houses, schools or a strong economy. Neither have they blocked progress. Courts can only deal with what is presented to them. But courts are not the only institutions that can do much to enforce socioeconomic rights. Worldwide other monitoring mechanisms are used with considerable success. If we use the Constitution.

During the drafting of the final Constitution, the public was invited to make submissions to the Constitutional Assembly. The late Professor Christof Heyns, of the Centre for Human Rights at the University of Pretoria, proposed a clause to provide for monitoring progress regarding socioeconomic rights. After some resistance from one or more representatives of the governing party, allegedly for the prophetic fear of future embarrassment, the proposal made its way into chapter 9 on “State Institutions Supporting Constitutional Democracy”. 

Section 184(3) states: “Each year, the South African Human Rights Commission must require relevant organs of state to provide the commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment.”

The wording ties in with the cautious formulation of socioeconomic rights. For example, section 26 does not grant the right to a house, but simply to “access to adequate housing”. All that is required of the state is to “take reasonable … measures, within its available resources, to achieve the progressive realisation of this right”. The government is not expected to build millions of houses overnight. That resources may be limited is explicitly recognised.  Reasonable progress is required, not miracles. And all organs of state have to do is to inform the commission on the measures they have taken.  

Of course, this clause is not the magic solution for our problems. It creates a domestic reporting system, similar to the systems of international treaty monitoring bodies. It does not state explicitly what the commission must do with the information, but it is unthinkable that it would do nothing. Section 184(1) tasks the commission with the promotion of respect for and the protection, development and attainment of human rights, as well as the monitoring and assessment of human rights in our Republic. To this end, section 184(2) gives the commission certain powers.

It could also serve as a first step, assisting with South Africa’s reporting duties under international law. 

In a recent publication, Professor Danie Brand, director of the Centre for Human Rights at the University of the Free State, describes the difficulties and apparent demise of the system for the section. From 1997 nine reports were produced but, since 2013, no overarching report has seen the light. The entire monitoring exercise seems to have collapsed, at least partially. Information has allegedly neither been requested nor provided for almost a decade now. The reasons include the “almost from the outset … if not resistance then at least debilitating tardiness from organs of state” to submit reports.

It is not for me, but for a court of law, to find whether the commission, the government, or anyone else, is at fault. One hesitates to suspect a lack of constitutional commitment, or even constitutional sabotage. 

Is it not extremely serious and dangerous if a direct and clear constitutional imperative is ignored or disregarded by the very constitutional bodies to whom it is addressed? Should a court not be approached to declare the relevant entities to be in breach of a constitutional obligation — and perhaps go further by ordering action? 

Section 2 proclaims that the Constitution is the supreme law of our country. It adds that “the obligations imposed by it must be fulfilled”. Section 237 states that “all constitutional obligations must be performed diligently and without delay”. In such an application the respondents could state their case, which is hopefully stronger than implied by my version here.

One of the objections against the inclusion of socioeconomic rights in the Constitution was that rights that are not taken seriously may become empty promises and contaminate the entire Bill of Rights. Are we there yet? Why honour some rights if others are ignored? Could a future government abandon fair criminal trials for a while because of difficult circumstances? Or postpone elections indefinitely, as has happened elsewhere? 

In the last-mentioned scenario opposition politicians will certainly protest loudly. Are they more concerned about power and positions than housing, health care, food and water for our voiceless poor millions?

The views expressed are those of the author and do not reflect the official policy or position of the Mail & Guardian.

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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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