The Constitution & Bill of Rights in a nutshell
In the heat of the moment, when short-term expediency beckons, when emotions are high we need to take a step back. We need to assess the righteousness of any action or decision as an important way of securing the progress our democracy enables. We need a yardstick. This ‘yardstick’ is our Constitution and the Bill of Rights.
Just over 20 years ago, we reached agreement to establish a constitutional democracy. It was the basis for a new understanding of how to advance the goals of equality, dignity and freedom. For the first time in South Africa, we accepted the value of a ‘yardstick’ against which actions in our society could be measured.
Although the extension of the franchise, the protection of freedom of speech and protection of choice are all clear examples and indications of how dramatic the shift from apartheid to democracy is, the Constitution also acts as a social compact on the basis of which far more transformation is required.
The imperative to move away from the apartheid discrimination and its legacy is referenced in the preamble.
However, the substance of this injunction is contained in explicit terms in a number of the rights, particularly those dealing with social and economic transformation. And the primary duty for the fulfillment of these rights does not lie exclusively with government but with all the holders of power – political and economic.
The obligation to respect and safeguard the rights of others places limits on the individual’s freedom and applies to every person. Existing laws – whether part of customary practice or as a result of statute – or those that elected representatives enact have to comply with this Constitutional framework.
But the Constitution is a law and like all laws its strength lies with the tangible benefits that its implementation brings. The idea that any law can be upheld simply through Court processes and enforcement mechanisms is delusional. At the same time, some of the benefits of our transition are not purely measurable in terms of material gains. Consequently, for ordinary citizens to assess the impact of constitutional democracy and to measure its progress, it is vital for on-going education to all citizens to be provided about the Constitution, the bill of rights and apartheid history. Part of judging how strong the Constitution remains as a social compact is the exploration and debate around the narrative of our past.
Race is a key part of our social fabric as a consequence of colonialism with the slavery and enslavement it involved and our apartheid history. It touches every part of our lives and is embedded in the spatial geography of our country. Yet it is an ‘uncomfortable topic’ because to recognise it has the potential to shake our optimism that we have advanced and can unleash many manifestations of the underlying, untransformed and/or unresolved trauma of our recent history. Yet we avoid these issues at our peril.
The Human Rights Commission is called upon every day to deliberate on complex issues of race, gender and class in South Africa. We do so, recognising that even in contexts where we expect egalitarian relationships to flourish, there remain deep historical wounds that must be factored into our findings. The vision of a transformed society, with rights that are secure and progressively realised and where dignity is restored and protected are inextricably linked and at their centre, lies the core of our exploitative and repressive past – namely, discrimination. For us to move ahead, we need to consciously confront the politics of identity. We need to do this not as a mantra or with any illusion that we have all the answers.
Many of the interventions that have been devised have sought to bring about change in the shortest time possible. Schemes have been crafted with a view to laying out that which can be promised by representatives with an electoral mandate of only a five-year term. It is not surprising that many of these measures fall short of the structural changes that need to be made to our economy, our education system and our infrastructure, amongst others – changes which will take decades of consistent policy and implementation. Often failure needs to have something to blame and more often than not, blame is placed on the law-, and on the bill of rights by people whose legitimate expectations spill over into manifestations of anger.
Yet, blame is usually waived about at times when the real source of anger and frustration need a cloak to hide behind. It is when people who do not have water to drink anywhere near their homes are promised solutions repeatedly that fail to materialise with no attempt at explanation. It is when community members are informed about plans at meetings which masquerade as consultations. It is the failure to repair roads in the face of local government spending on convoys of cars to accompany politicians. It is the unexplained wealth of those who wield power – political and economic – and are then not held to account when evidence of corruption emerges. One only has to look at housing projects that see millions being paid to private developers who abscond without sanction.
The transparency, fairness and accountability promised in our Constitution are vital to secure our democracy. These are primary forces for good or evil and without them our democracy is not only undermined but is placed at risk.
The year 2015 will mark the South African Human Rights Commission’s (SAHRC) own 20th anniversary. As one of the institutions established to support democracy through its ability to independently promote, protect and monitor rights in South Africa, the Commission will reflect on its existence, functionality and impact over the period. The state of the country’s economic and social rights has a bearing on the SAHRC’s monitoring mandate, and how it is exercised to influence the promotion and protection mandates. Disregard for environmental rights – for which business is responsible – also has a huge impact on economic and social rights including pollution, water scarcity, food shortages, waste disposal, natural disasters and their impact on food, housing, health, service delivery and so on.