If there are two names that are known throughout South Africa and have come to symbolise the failure of successive ANC governments in democratic South Africa to deliver social justice and equality, they are Michael Komape and Life Esidimeni.

Michael Komape was the five-year-old black schoolboy whose life ended horribly, drowning in other children’s faeces at the bottom of his school pit toilet on 20 January 2014. That was his first and last day at school.

The words Life Esidimeni call up a more complex story, but one of equal horror. The name refers to the 144 mental health care users who were tortured (a description used by former Deputy Chief Justice Dikgang Moseneke) and then died painful and confused deaths as a result of the Gauteng health department’s cruel and unwavering decision to close a long-term mental health facility in 2016 and to turn its patients over to unregistered and unqualified NGOs.

Years later, the Komape family are still being denied justice, although a judgment of the Supreme Court of Appeal on their damages claim is expected soon. The families of the dead and the survivors of the forced removal from Life Esidimeni have been compensated financially for their loss with the awarding of over R1-million in damages. Politicians like former Gauteng Health MEC Qedani Mahlangu have been shamed and made to account publicly for their role (and in a few instances, lost their jobs). Yet, nobody is in prison for causing such an extensive unnatural loss of life and the truth and real motives for closing the hospital are still not known. Justice is still elusive.

The first half of my essay makes the point that without the involvement of civil society, particularly SECTION27, neither of these cases would have become household names. There would have been no justice, rather than a little justice.

In this respect, the essay recounts and celebrates the strategies and methods by which SECTION27 built communities of resistance around these tragedies. Both cases have involved skilful and innovative uses of constitutional law: in the Komape case – although the High Court judge refused the Komapes compensation – an important structural order was obtained compelling the government in Limpopo to audit, report on and build school toilets.

In the Life Esidimeni case, an all-women team of lawyers, led by advocate Adila Hassim (a founder of SECTION27), painstakingly re-constructed what happened through hundreds of interviews. The lawyers catalysed and then assisted an investigation by the health ombudsperson which led to a damning report. Finally, there was the legally novel and successful use of an arbitration to try and get relief for the families. It proved much faster than bringing a damages claim through the courts and more effective than a commission of inquiry.

In both tragedies, the ways in which SECTION27 used traditional and social media played a big role. Poignant photographic exhibitions, postcard campaigns, a billboard on South Africa’s busiest highway, powerful videos on YouTube, combined with research reports containing detailed and meticulous research all helped to build public imagination, empathy and then outrage. All these took the Life Esidimeni tragedy before a parallel court of public opinion where, in front of a live television audience of hundreds of thousands, politicians were forced to account. That’s the only way to make politicians sit up because they know these tragedies happen daily. These campaigns brought little Michael and the mental health care users back to life, helped people relate to their pain and loss.

Finally, social mobilisation and community empowerment were another constant. Alliances were built with professional organisations like the SA Psychiatric Association (SAPA), the South African Depression and Anxiety Group (SADAG), and in the case of Michael Komape, specialists in school sanitation and economic and budget analysts, who gave oral evidence in court.

Side by side with this, social movements like the Treatment Action Campaign (TAC) and Equal Education (EE) became involved in building solidarity and power with the Esidimeni family’s committee and with Michael’s mother, father, brothers and sister.

Through this complex web of activities, all running simultaneously, SECTION27 and its allies were able to mobilise opinion. By invoking rights they vindicated rights, taking advantage of freedoms of expression, protest, access to information that – as civil space is squeezed across the world – we take for granted at our peril.

These cases were proof of how vital the protection and fulfilment of civil and political rights is for the realisation of social and economic rights, like access to health care services and basic education.

Yet, here lies the rub. Ultimately, both of these cases were about more than individual human rights and justice, they were about social justice. They aimed to build pressure to ensure socio-economic rights realisation and it is against this that we also have to measure their success.

Unfortunately, what the essay suggests, is that against these measures the campaigns have been less successful; they have been unable to dislodge the systemic drivers of inequality; they have not brought about far greater expenditure on mental health or school toilets. In fact, judging by the ANC’s insistence on deepening austerity budgets in 2018 (including an increase in VAT) and 2019, the politicians have still failed to join the dots.

Although my essay is based on SECTION27’s work, I would argue that evidence suggests this is a challenge that faces activists widely in South Africa, and indeed internationally.

So, it is here that I believe civil society now needs to have a serious conversation. I argue that with the fiscal cupboard said by government to be bare, the terrain for these struggles has changed.

In words by Philip Alston, the United Nations Special Rapporteur on Human Rights and Extreme Poverty, which I only encountered after writing the essay:

“Can human rights proponents… continue to concentrate only on what is feasible within a system that is required to function with ever fewer public resources, or must they tackle broader issues of fiscal policy?”

Put bluntly, it’s time for civil society to reassess its methods and strategies.

Probing the design flaws

The second and third parts of the essay explore the methodology of social justice organisations in more detail. In particular, they probe fault lines that bedevil social justice organisations that, if not admitted and addressed, will widen. In some instances, I go further and call these “design flaws”.

I identify three in particular:

Race and class: There has been legitimate concern about the demographic representativity of the leadership of many social justice organisations. However, in the past few years, there has begun a necessary and welcome shift, with many more organisations now led by black people, and women in particular. Yet a deep understanding of race and non-racialism remains missing.

However, the issue of class remains barely discussed. I argue that if social justice work is viewed as just another profession, and if its leaders are not materially connected to the actual suffering they challenge, they will always be risk-averse when difficult and radical decisions may be needed. Concerns about the professionalisation and elitism of NGO-led human rights struggles are raised strongly by writers such as Arundathi Roy. Class is a key issue and underlying it is accountability. Civil society organisations cannot only be accountable to their donors for their results. If they are, people will die, systems will continue to collapse, children will continue to die in pit toilets and the most vulnerable will be treated like dispensable pawns.

Which leads to Funding models: This issue goes much deeper than the familiar lament about onerous reporting and undue donor interference. My argument is that the model by which most of civil society is funded by philanthropies and other organisations that are (at this point) intrinsically hostile to equality, is both a contradiction and a threat to sustainability. Achieving human rights and overcoming inequality will require radical changes to tax, governance and economic regulation.

As documented in Winners Take All: The Elite Charade of Changing The World by Anand Giriharadas (essential reading, dear civil society leader), enabling the very same elites who have gamed the neo-liberal world to their enormous personal benefit to set the parameters for its change is deeply naïve. There is a problem here and it is not ameliorated by how progressive some of the big organisations such as the Open Society Foundation (OSF), the Ford Foundation, the Bill and Melinda Gates Foundation and the people who work for them are. Despite a veneer of consultation, our relationship with these foundations is mostly that of supplicants, is uncritical (except when requested) and can require a great deal of self-censorship about their behaviours and beliefs.

By contrast, the lack of investment in civil society by the people who are meant to benefit from its work is a vote of no confidence. As was proved in the early years of the trade union movement, if poor people believed in the organisations that say they fight for their interests they would find ways to finance them. That would also lead to greater accountability, fewer perks and lower salaries in the NGO sector.

Finally, the struggle for social justice is a long-term project, but funding for civil society is always precarious and short-term. This builds short-termism into thinking and planning.

Gender and feminism: I believe that human rights activism has largely overlooked gender equality and in this way has not departed from the trade union or socialist struggles that came before it. Civil society has failed to take gender equality seriously, either as a core component of social justice or as a principle for leadership in the human rights movement. Women’s leadership is a necessary but insufficient component of the transformation that is required. What is needed is to see the fight against gender inequality and violence in every human rights struggle and to develop and implement a meaningful feminism as the key philosophical underpinning of social justice. This means rethinking ways in which struggles are waged, methods and tactics. I conclude:

“The dominance of male voices driving male agendas must mean that millions of women and girls are not excited by social justice, do not see social justice organisation as their community and home, because it does not espouse their most common oppressions and indignities.”

That must change.

The essay concludes by arguing that for civil society to be successful as a driver of deep change requires reinvigorating the fight against inequality, but that this will not be achieved simply by saying “no”. Pro-poor civil society (including trade unions, genuine left political parties, NGOs and faith-based organisations) must develop a convincing alternative vision that can galvanise people. Building on the work of people like Kate Raworth (formerly of Oxfam) we need to sketch out a pathway to equality, one that shows that advancing human rights is economically feasible and possible. This requires that states are made more competent, capable and – I would add – forced to abide by human rights commitments they have subscribed to in national and international laws.

I wrap up this challenge in a final tongue-in-cheek but seriously intended paradox:

“Ironically, a post-capitalist society requires a post-socialist vision.”

Let the discussion begin.

The full essay is available here. MC

Mark Heywood is the editor of Maverick Citizen. He is also the founder and former executive director of SECTION27 and a board member of the Treatment Action Campaign.