Opinionista Mark Heywood 29 July 2013

The legacy of Pius Langa – advancing the rule of Poor Law

It is not that the poor – or the rest of us – lack the power to prevent inequality and social injustice. What we need is more ideas and more willingness to get involved.

In a previous article I have argued that the barrier to social justice and dignity for the poor is not that the poor lack power, but that the advocates of justice have a paucity of ideas about how to achieve the change the world so desperately needs. There is not (yet) a strategy to integrate human rights based legal frameworks that exist at a national and international level into day-to-day struggles and to use them to legitimate and advance the claims of social movements and the demands of the oppressed.

The best way to bring this argument home is to have an activist (as opposed to a judicial) peek at the South African Constitution, with a view to appreciating what the late great Chief Justice Pius Langa called its latent “transformative” power – if it is properly utilised to advance the cause of social justice.

In a beautiful address to the Sunday Times literary awards in June this year, Constitutional Court Justice Edwin Cameron lamented:

The “left” has never fully explored the radically egalitarian assertions in the Constitution’s equality clause – including the promise that “Equality includes the full and equal enjoyment of all rights and freedoms”.

Although Judge Cameron – like any good judge – went on in his lecture to balance this assertion with a statement that the “right” has equally not explored the rights of freedom of trade, occupation and profession, the reality must be that the Constitutional scales are not equally balanced between left and right. They are tipped heavily towards advancing the dignity and life-prospects of the poor. And so they should be.

Indeed, although much worthy effort has gone into the research and writing of our National Development Plan (NDP), the reality is that from the moment on 10 December 1996 when the ink dried on the signature of Nelson Mandela, the Constitution became our development plan. This plan has the added advantage of being above Alliance and intra-party squabbles because it is our supreme law, meaning there is no greater authority or binding injunction as to how the state must conduct itself and for what purpose.

Whole books have been and will be written about the Constitution, and the constitutional court itself in its 495 judgments (up to July 2013) has had much to say as well! But the crucial point is that at its heart the Constitution requires by law that our society is organised in a way that makes it a better and more equal one, and this injunction must infuse and inform every area of policy and law. Note that I have emphasised every!

With 20 years of democracy now in view it’s clear that it has not done so far. But whose fault is that?

Let’s take the issue of children’s education. The Constitution says that everyone has a right to a basic education. It makes no qualification about ‘available resources’, as it does with the right of access to health care services. Plainly stated, this means the state must immediately invest the resources necessary to provide children with an education of a quality that is universally accepted. But such a provision does not self-enact! Neither will it automatically be complied with by politicians and civil servants who may be greedy, stupid, self-interested or just conflicted. It must be demanded, and its provision overseen brick by brick, book by book – by the population whose right it is.

It must be organised by the poor.

Another power gifted to the people by the writers of the Constitution lies is the fact that its dictat applies not only to state conduct, but also to that of other powers, particularly what we might call private or corporate power. Admittedly, it does not sanction revolution! Admittedly, it does also allow the operation of a market economy based on property ownership! But it does require that private powers and property subscribe to and abide by its rules. This is revolutionary. Theoretically, the privately rich and powerful cannot act in a way that undermines the very same rights that the state has a positive duty to protect or provide.

Let’s try to decode two examples. The constitution says plainly that “everyone” has a right to “sufficient food”. Yet, as you read this, there are twelve million silent hungry people in South Africa. One in five children are stunted for life due to malnutrition they experience before the age of ten. I dream of hunger marches, where people make groaning and starved stomachs a public affair. Just as TAC pioneered the visibility of people with HIV with a t-shirt that said plainly, “HIV positive”, we need a T-shirt that says “Hungry” – we need a movement led by the hungry that builds hunger awareness, hunger solidarity and hunger literacy.

Crazy as it might seem, mass hunger should be treated as an unconstitutional state of affairs that must be overthrown. The fact that this state of affairs it is tolerated by politicians with burgeoning midriffs (even the Economic Freedom Fighters betray signs of over-consumption of food) is a reason why the poor should be trying to get a definition of the right from the Constitutional Court as rapidly as possible. But to establish the state’s duty there must be research that uncovers the patterns of profiteering from essential foodstuffs (in the same way as TAC did with essential medicine), and legal arguments should be developed about what are the government’s policy options in relation to food. For example, what regulations is it duty bound to develop on private conduct of the large retail super-markets to ensure that basic essential nutritious food is not priced out of the reach of poor children, men and women?

To make the Constitution work there is a need for a more sophisticated and skilled civil society, indeed a different type of civil society. Society must be civil. The notion that there are NGOs “and us”, and let the NGOs do the dirty work, must give way to one of pooling of social resources and intelligence in the interests of civility, dignity and the advancement of the Constitution.

A political realignment around social justice will benefit everybody.

For example, whilst the great South African trade union movement is being racked by a politically inspired plot that aims to tame COSATU, it would be a good time to debate the role of trade unionism in the twenty first century – or at least its methods – and ask how this movement could take fuller advantage of the Constitution. This is also necessitated by the fact that as a rule that all the organisations that were created in the past to advance justice have generally been caught napping in the present.

The platinum industry would offer a useful case study.

The emergence and growth of extractive industries in the North West, particularly platinum mining, is a post-constitutional phenomena. Typically, industrialisation is supposed to bring prosperity. Yet the Bench Marks Foundation (which was unknown to most people until a few days after the Marikana massacre) has documented how new industry has brought not prosperity but desertification, environmental degradation, social division and ironically, greater unemployment. Civil society and the trade unions seem to have been powerless to stop this; which makes one wonder about the value of having a constitutional right to an environment that is “not harmful to health and well being” or the injunction on government to protect the environment “for the benefit of present and future.”

Viewing the pre-math that led to the monster of Marikana (and not just its aftermath as tends to be the case), the question that must be asked is how this could have happened under our Constitution’s watch. The answer is not enough people are watching the Constitution. Not enough people are testing the Constitution. Not enough people are crying out against unconstitutional conduct and consequence.

So back to Justice Cameron. In the same speech that I started by citing Cameron calls the Constitution “a viable framework for the practical play of power needed to vest our future beyond our current problems.” But he points out that it is not self-executing, not a performative instrument, that it has “no self-agency.” It needs you and me. So while we wail and bemoan the dark days of inequality, those people who believe in social justice (hopefully a much broader swathe of our society than those who actively fight for it) should remember that our heroes – Nelson Mandela, Chris Hani, Arthur Chaskalson, Pius Langa – did not depart the world’s stage leaving us denuded of their ideas and legacy. There is a way out of the rot. We have power. We should use it better. DM


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