Every March 21 I have bittersweet feelings. Sweet because the history of ordinary South Africans resisting the apartheid regime by refusing to carry passes giving them freedom to which they were entitled is evidence of black people’s resilience in the face of colonialism and apartheid.
We should not take the struggles of generations before us for granted. I often wonder whether I would have had half the courage of those who came before me if I popped into the world a decade or two earlier than I had.
Our public discourse is often ahistorical, which is more reason we should reflect sharply on what happened in Sharpeville in 1960 when at least 69 people were murdered and some 180 wounded by apartheid police doing the dirty enforcement work of the system’s political architects.
States have a monopoly on force and that can act as a disincentive for citizens to oppose a wicked legal system.
On that day, however, ordinary people sent a message to the National Party and the world that they would not be passive in the face of human rights abuses, but would intensify the struggle for a democratic SA.
However, Human Rights Day also leaves a bitter taste in the mouth. The truth, sadly, is that our post-1994 human rights record remains mixed.
We do not always take stock of the gap between the promises contained in the Bill of Rights, and the failure to fully live up to those promises
The other day I had the rare fortune to be in conversation with former constitutional court judge Albie Sachs, who recalled the history of constitution-making in SA. The constitution we finally adopted in 1996 has a complex and rich story behind it of which we can be immensely proud.
The ultimate proof of whether a human rights culture has taken root in SA is to examine the empirical conditions under which we live.
I often travel to Soweto with my partner, whose family lives in the home where he grew up. The journey takes us past Kilptown. The Freedom Charter was adopted by the Congress of the People in 1955 at Kliptown, setting out the aspirations for a just and equitable future democratic SA.
It is one of the most historically important sites in SA, one that cannot be left out of any story about the history of constitutionalism in the country. Yet it is also one of the poorest areas in the country, leaving one saddened by the unfulfilled aspirations of 1955.
No one can claim black South Africans living under conditions of extreme poverty in Kliptown have their dignity affirmed by the democratic state.
When we export human rights jurisprudence to the rest of the world, we emphasise elements of our distinctively bold and modern, liberal constitutional order. Yet we do not always take stock of the gap between the promises contained in the Bill of Rights and the failure to fully live up to those promises.
Our constitution famously includes socio-economic rights that are legally enforceable against the state.
While the constitution does not guarantee a minimum core of each right — it does not, for example, quantity a specific amount of water or electricity to which you have a right — it does say the state “must take reasonable legislative and other measures, within its available resources” to ensure the “progressive realisation” of our rights to healthcare, food, and social security.
This was why, for example, the Treatment Action Campaign eventually won its constitutional battle to ensure pregnant women have access to anti-retroviral drugs to help them give birth to babies who are not born HIV-positive.
The state can be held accountable using the constitution as a crucial democratic bulwark against irrational and unresponsive government. The constitution should be appreciated for placing an evidential burden on the state to demonstrate not just rationality and reasonableness in this case, but also that it had taken “reasonable measures within its available resources” to uphold the rights of citizens. But these famous examples do not change the reality of enduring systemic problems within our society.
Too many communities across our country are as poverty-stricken as Kliptown and for most South Africans the on-paper guarantee of legally enforceable socio-economic rights therefore means very little.
If part of the test of whether human rights are entrenched is that socio-economic rights are alive and well in SA, then we are failing. The lives of South Africans are only truly meaningful if every person has their human potential realised.
With our levels of structural inequality, deep levels of poverty and criminally high levels of joblessness, worsened by a broken state that does not care demonstrably about millions of South Africans trapped within this unjust structural hell, too many citizens are unfamiliar with the affirmation and promotion of their human rights.
While it is commendable that 18-million South Africans are covered by social security provided by the state, it is not a system that has ensured upward income mobility and self-actualisation of those dependent on grants. In many instances the grants do not go far enough to prevent millions from living below the poverty line, even while receiving a state grant.
Socio-economic rights have yet to be deeply and trulyvanimated across the country. Of course, apartheid was so thoroughly evil as a system that any unnuanced comparison between it and democratic SA is misplaced. However, that does not mean we cannot pick out some continuities that persist despite the democratic turn of 1994.
Police brutality, for example, is not a nightmare from a bygone era. The crackdown on community-based organisations and social movements like Abhlali baseMjondolo is proof the police service is capable of repressive anti-democratic violence akin to what happened in 1960. There might be a difference in scale and prominence of such violence, but the legacy of human rights abuses has not yet been fully eliminated from our society. The SA Police Service (SAPS), despite the second “S” in that acronym, is very much a police force and not yet a police service with legitimacy derived from a relationship of deep trust with communities it is meant to serve.
What does this all mean? While we can be enormously proud of the legal architecture adopted in the 1990s as a textual break from the wicked apartheid system, we cannot afford to self-congratulate without paying continuous close attention to empirical realities that make a mockery of the vision of a just and equitable society.
Civil society must cooperate to ensure powerful state and non-state actors are held accountable for the ways in which they perpetuate injustice in our society.
The gap between the language of human rights, and unjust realities to the contrary, requires honest self-examination rather than platitudes from politicians aimed at pacifying restless citizens.
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