On Tuesday, 21 March, Human Rights Day was observed. There’s something to be said for marking days, where they are treated as more than rituals. There is some value where they are used pedagogically to explain and engage with the history and meanings of human rights in South Africa or the continued denial of many of these human rights to people today.

Engaging human rights

Human rights are also used pedagogically where we point to the potential enrichment of the rights that are guaranteed in the Constitution and how these could be enhanced and “broadened and deepened”, to use the discourse of the early days of democratic rule.

It is important to mark Human Rights Day in a way that will leave audiences or readers with a better understanding of what these rights entail under South African law and various declarations of human rights found in the Constitution (1996), the Freedom Charter (1955) and international documents like the Universal Declaration of Human Rights (1948) and various UN covenants.

Beyond that, it is good if people are encouraged to engage with such rights and indicate their shortcomings, their limitations, and what needs to be done to enhance their enforceability, scope and reach. One might ask who is excluded from enjoying some of these rights even though they are usually phrased in universal terms.

Is the exclusion justifiable or unjustifiable, on grounds that are compatible with respect for all human beings?

If it is unjustifiable, it is important that we find a way and use such occasions to indicate how to remedy the shortcomings. It may well be that the format of a commemorative event is unconducive to such enquiry and engagement, insofar as these tend to be celebratory. Such questions still need to be debated insofar as many human rights have contested meanings, and in practice, modes of enforcement may mean they do not actually benefit large sections of the population.

Human rights debate and changing meanings of such rights

Failure to engage in a human rights debate is part of the general depoliticisation of South African politics, focusing as it does on personalities in leadership. Where people or organisations do deal with human rights professionally, they tend to be preoccupied less with pedagogy than with the essential task of providing legal or other defence for people who are under attack.

What arises in some legal cases but ought to be part of our wider understanding is that the meanings of human rights are not static. In the history of humankind what is possible to provide as a result of human and scientific development means that, unlike in earlier centuries, no person ought to go hungry, not merely as a moral principle, but because of what it is now possible to produce on this Earth.  When many still go to bed with empty stomachs it is not because of food shortages, but because of ways of distributing for profit in South Africa and many other parts of the world.

Hardly any concept has a static meaning and this is true of notions like freedom and human rights. This can be illustrated in relation to the Freedom Charter, which is too often treated as a text whose every word has a definite and final meaning.

In the 1980s there was an amplification of the meaning of clauses of the Freedom Charter, deriving from the popular-power period. Until then the opening clause of the Charter, “The People Shall Govern!” was taken to mean votes for all, universal adult suffrage, a fundamental demand for a people who had been dispossessed of their land and ruled by the gun.

In the 1980s, however, resistance to apartheid resulted in large parts of South Africa, especially African townships, being made “ungovernable” and police and “Bantu Affairs” officials being driven out of the townships. The ANC, through its illegal Radio Freedom broadcasts and local UDF leaders, declared that ungovernability could not, however, be a permanent state and urged the masses to create “elementary organs of people’s power”. (See also Zwelakhe Sisulu, “People’s Education for People’s Power”, 1986; Murphy Morobe, “ Towards a people’s democracy: the UDF view”, Review of African Political Economy, 14, 1987, p. 82; and Raymond Suttner, “The Freedom Charter @60: Rethinking its democratic qualities”.

In very many townships people took control of their own affairs and mediated conflicts and undertook a range of tasks normally done by government officials. Weze Made, a Uitenhage official, declared that in building street committees and other structures to manage the townships they were consciously implementing the first clause of the Freedom Charter, “The People Shall Govern!”. (Interview, 2006).

Undoubtedly there were abuses, especially when almost all older people were arrested and the youth were in command, but the people’s power period saw a return to the original meaning of democracy, generally credited to Aristotle, with people practising democracy directly.

In so doing, people on the ground were expanding the meaning of the first clause of the Freedom Charter and the right to govern, so that it would not mean that freedom would only be achieved after the first democratic elections, but that people could start to grasp freedom in their everyday lives, there and then. This was already being done in the trade unions, insofar as they conceived their demands and gains as part of building a new society. (See Steven Friedman, Building Tomorrow Today: African Workers in Trade Unions, 1970-1984 [Ravan Press, 1987].)

This, of course, raises the question of what place “direct democracy” should enjoy today.

Constitutionalism, legality and the rights-based democratic state

Under apartheid, the constitution and much of the legal system were foundations for the denial of rights and much effort was devoted by its opponents to legal but also illegal methods for overthrowing a state whose legitimacy and even legality was open to question. Certainly, there were opportunities to act within the law in defence of liberty and that was done by some lawyers and a limited number of judges, within the limits of their office. But the legitimacy of what used to be called “the system” was widely questioned.

In the years that followed the first democratic elections, the place of law and human rights came to be quite different from that of apartheid South Africa. With the adoption of the interim Constitution and later, the final Constitution of 1996, a rights-based legal system was put in place with a range of human rights enshrined in the Bill of Rights holding a fundamental place in the Constitution and enforceable by courts.

This set of rights encompasses a broader range of social, economic and individual freedoms than is found in almost every constitution in the world. In consequence, the way in which the population was encouraged to view human rights and the law and the Constitution is to see these as a source of freedom and for realising themselves as human beings in a democratic society.

Those who had previously devoted themselves to undermining the law and the Constitution in the apartheid days had to apply a quite different approach to the legal system of the democratically constituted South Africa.

Regrettably, we know that many of these rights enshrined in the Constitution have not always been honoured and respected and enforced as they ought to be, and as they were understood when the Constitution was adopted. Consequently, there is still a need for lawyers to act for the oppressed, who remain the same categories of people who were oppressed under apartheid (and some fresh categories who are now also marginalised) and who have not enjoyed the rights to which they are entitled under the Constitution.

But the role of lawyers in relation to the Constitution is not simply defensive. Some test cases, as in the famous Irene Grootboom case, have ensured that meanings are given to constitutional provisions that expand the scope of human rights in order to have a right imposed on the state to provide housing, ensuring that funding is allocated to make this realisable and to protect those in occupation of land from arbitrary eviction. (Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (4 October 2000).

Not just a celebration of constitutionalism and legality

South Africans rightly celebrate the entrenchment of rights under the Constitution adopted in 1996, referred to as a rights-based constitution. And the courts have played an important role in defending and sometimes advancing these rights beyond the wording in the Constitution, but in accordance with its spirit.

But it’s important that we do not regard the Constitution simply as a legal document or human rights purely as the realisation of legal rights under the Constitution or through the courts.

These rights are important, protected — as they are — by the state and the Constitution. They are an important part of what we can draw on in order to realise ourselves as human beings.

But it’s important for us to understand that the Constitution and legal system operate within a social order that continues to perpetuate many of the inequalities and oppressions that were found under apartheid.

Consequently, even though this runs contrary to the spirit of the Constitution, and the human rights-based wording of that Constitution, it is a fact that there remains a coexistence of human rights in law and human rights denial in practice.

That denial is in the first place based on the large-scale inequality in South African society, in fact, the most unequal society on Earth. Before we can speak of truly celebrating human rights in South Africa, we need to be addressing the widespread inequalities that remain in the society.

It remains a fact that more time may be spent in policing those who are victims of the denial of these rights — attacking foreign-born nationals, suppressing legitimate protests, driving people off land that they’ve occupied because they have nowhere else to stay. A range of these practices, of occupying land in particular, arise where people have decided to take the situation into their own hands, not in order to create chaos, but in a desperate attempt to create a decent life for themselves.

That is a claim/demand for a roof over their heads that remains under attack. And, in fact, the state that is supposed to be advancing the human rights of all is at the forefront of these attacks. DM

This article first appeared on Creamer Media’s polity.org.za