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We have ‘destroyed the legitimacy’ of our own Constitution – experts lament South Africans’ unfulfilled rights

We have ‘destroyed the legitimacy’ of our own Constitution – experts lament South Africans’ unfulfilled rights
Daily Maverick associate editor Ferial Haffajee. (Photo: Gallo Images / Destiny / Nick Boulton) | Professor William Gumede in Johannesburg on 3 March 2009. (Photo: Mail & Guardian / Oupa Nkosi) | Professor Geo Quinot. (Photo: Supplied)

In light of South Africa’s many socioeconomic challenges almost 30 years since the end of apartheid, and in the run-up to the 2024 elections, a Daily Maverick webinar explored how the government has been negligent in meeting the needs of its citizens.

Though socioeconomic rights are embedded in the Constitution, many South Africans have lost faith in their power as the government continues to ignore them, attendees heard during the third Constitutional Insights webinar.

Hosted by Daily Maverick associate editor Ferial Haffajee, the webinar featured returning panellists William Gumede, associate professor in the school of Governance at the University of the Witwatersrand, and Geo Quinot, professor of law at Stellenbosch University, who reflected on the difficult journey towards reaching the “visionary rights” of the Constitution almost 30 years after apartheid. 

Gumede explained that “socioeconomic rights are very much interlinked to human rights, also the two are integrated”.

The Constitution clearly stated that the government had a duty to respect, protect, promote and fulfil all the rights in the Bill of Rights. The duty to respect the Constitution meant the government should not take away socioeconomic rights or make it difficult for people to exercise their rights. 

Socioeconomic rights gave people power to access certain basic things and services, such as shelter, healthcare, food and social welfare, so they could at least lead a dignified life.

Gumede said the government has no right to deprive a qualifying candidate of a social grant or limit anyone in exercising their rights. 

The severity of neglected socioeconomic challenges in South Africa include the recent “glitch” that stalled September’s grant payout to the elderly, many of whom are entirely financially dependent on social welfare to survive. 

The healthcare system too has underwhelmed as the government repeatedly fails to fulfil its constitutional mandate to provide equitable healthcare services to all South Africans. A number of healthcare facilities lack basic resources such as water, sanitation facilities and proper shelter for waiting patients.

In late August, a fire in a Johannesburg building, which had been a provincial government shelter for women and children, left at least 74 dead. The government’s response to the tragedy was to blame NGOs and foreigners.

Read more in Daily Maverick: City of Johannesburg points finger at NGOs and foreign nationals after deadly fire

Quinot pointed out that although these rights are enshrined in the Constitution, many people have lost faith in their power as the government continues to ignore them.

“Often we get quite pessimistic about the Constitution, get critical of the Constitution because people point to these rights and say, ‘but look, it means nothing. People are still without houses, they are still without water.’ And of course that is true,” he said.

Not seeing the role of the Constitution in the country due to negligence and lack of implementation could cause people to resent the Constitution, but “we need to be careful about how we frame that narrative and where we direct our questions and our energy”. 

“Does the problem lie with the actual Constitution containing these rights or is it an implementation problem? I would argue that in that conversation we should be very very careful to simply know our Constitution because I think our Constitution goes a long way to guarantee a lot of things that’s just not done anywhere else in the world, and that’s got meaning, it is important. We should probably look more closely at the lack of implementation under these rights if we want to be critical about conditions on the ground as opposed to criticising the Constitution itself.”

Read more in Daily Maverick: ‘Very toxic’ – public service culture in South Africa ‘not accountable and not transparent’, say experts

The Constitution will be 28 years old in 2024, yet many people still endured “unacceptable” living conditions. Quinot suggested that there should be systematic investigations to discover and deal with systemic blockages. 

The lack of accountability by government officials and the practice of selectively implementing the Constitution had also played a big role in the destruction of the legitimacy of the Constitution – all taking place under a president who was one of the drafters of the document. 

Gumede, who is also the independent convenor of the Multi-Party National Convention, describes this as a “heartbreaking sentiment” after 1994.

“When  the ANC came to power it was at the heart of putting the Constitution together and then it became a party state where the party and the state became the same. The ANC’s party constitution became more important than the country’s Constitution and the Constitution has been used selectively… we have really destroyed our Constitution”, said Gumede. DM

Watch more webinars in the series below:

 

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  • John Smythe says:

    Somehow I don’t think that the general populace even know that they’re being denied their rights enshrined in the constitution. It’s somewhat pointless talking about it in webinars because you’re talking to the converted. It’s time to start educating those who have ANC engraved in their brains because they don’t understand that now (and 2024) isn’t the time for “better the devil you know, than you don’t know”. It’s time to be brave and take a chance on the parties in the multiparty initiative because the lives of the poor are getting worse and worse. There will be no miracle!!
    But how does one communicate this to the voters and non-voters? It’s time for the press to address the poor and those who just don’t know better so that they can see how they’re being screwed by the ANC state. They are the fat lady who hasn’t sung yet.

    • William Kelly says:

      And he who answers this question will be the one eyed man in the country of the blind.
      It is done by making a start. How many have you talked to about this? It is your job. It is my job. These politicians come from among us. They are not apparated out of thin air. And I am ashamed.

      • Albert Smith says:

        Let us spread the word, offer cash bonuses, do all WE can to educate those who don’t know better. We cannot pass responsibility to the media, or anyone else. This is our country and WE should make it so

    • Denise Smit says:

      Unfortunately it appears as if Enca, SABC News, NewsAfrica, is the mouthpiece of the ANC/EFF party, and that is what the masses listen and see everyday. Not DM

  • Robert Pegg says:

    If the Zimbabwe election is anything to go by, the ANC will be voted in again and the same crisis government will continue. Whether we like it or not, tribal allegiances take precedent, not what’s good for the people.

  • There is a lack of accountability by officials . Unchecked power and corruption that leads to many citizens having no faith left in our beautiful Constitution.

  • Denise Smit says:

    The last paragraph of the report is the most important. The party must never become the state. This is what happened in South Africa and is destroying South Africa, and the state is being used to create a bigger party. Denise Smit

  • mclaughlin.anthony4 says:

    Its unfortunately too late…..the masses only see ANC…

  • Rod H MacLeod says:

    The social contract that exists in any society (being a set of agreed-to standards of morality and behaviour that brings a society together) is comprised of explicit as well as implicit standards. This webinar has dealt only with the rights (not obligations) of the explicit part of the social contract, the largest of which is the constitution. It did not deal with the obligations inherent in that part of the social contract, nor did it deal in any way with the rights or obligations of the implicit part of the social contract. A consideration of both parts is important because, combined, they provide a valuable framework for understanding harmony or disharmony in society.

    Harmony in a society breaks down where there is no fundamental agreement as to what the social contract is. And that is what we struggle with here in SA. Firstly, unfortunately almost everyone views the explicit parts of the social contract (the biggest being the constitution) as being a body of entitlements without obligations. You simply cannot have a contract in which each party believes they have only rights and no obligations. Secondly, what are the implicit terms of our social contract? I’m afraid there are very few agreed terms where for example 80% of the population believes that land invasions are acceptable, or that political leaders are untouchable etc. For these reasons, I can’t see a workable social contract in this country, and these flying-on-one-wing webinars take the matter no further.

    • John Smythe says:

      You’ve lost me on the social contract stuff. 🙂 But I agree with the effect webinars have. It’s pointless that only those who can pay for and have access to them can participate. They’re interesting, but not much else. You have to bring in the people who don’t know better. You don’t need video. Audio podcasts are good enough (they don’t gobble data). Do them and spread them.

      • Rod H MacLeod says:

        As a fan of Breaking Bad you should have a look at an overview of social contract theory on the internet iep dot utm dot edu slash soc-cont slash.

  • ndipiwe.classic says:

    How can we be 100% sure the IEC is not completely captured? Who can say with certainty that oversight structures are not also corrupted in this government construct? Without complete transparency as well as the abolition of secrecy in public service, there is no way to truly hold anybody to account. National security is a sham and a scam. It is the primary way in which thieves masquerading as public servants hide foul play right from under our noses. They are so deep in the pockets of the rich that there is little hope they will ever be extracted.
    Our government is inept, incapable and in over their heads. They have sold me, you and 99% of the populous down the river and left us out to dry. How do we hold men and women accountable when they control the media, the courts, the police force, the military, the money supply, the water supply and the electricity?

  • Confucious Says says:

    What do we expect when the likes of Showerhead and Sisulu publicly decree the “inappropriateness” of the Constitution (because it does not suit their habits and intentions of not being questioned and doing as the chief wishes)??? Ace (of spades) also complained that the Constitution was not for all, because he is going routed and exposed. We have an unbelievably powerful constitution which protects us from the government criminals. Imagine we didn’t!

  • Jack Russell says:

    Always plenty on “human rights”, which grow by the year, but never, ever a thing on human obligations?
    That is what will sink the West?

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