Opinionista Mark Heywood 25 June 2018

‘No Funds Available’: Can South Africa afford its Constitution?

The Constitution of the Republic of SA, as it is officially known, is a justifiably celebrated and much cited document. Nearly 22 years after it was passed into law it is still at the centre of law and politics. The Constitutional Court is kept busy; activists quote sections of the Bill of Rights on placards; and disputes rage over its meaning and essence, most recently over Section 25 on Property (read land expropriation).

The Constitution is most commonly used by social justice activists. But in 2017, during the State Capture wars, it also became a buzz word for business leaders who suddenly woke up to the importance of principles like separation of powers, independence of the judiciary and rule of law. They discovered the importance of the Chapter 9 institutions; fell in love with the office of the Public Protector; press-conferenced, marched and mobilised to demand accountable and open government.

But despite this love affair with the Constitution, we actually treat it with little respect, and even less real love.

Hard to believe though it seems, a recent survey by the Foundation for Human Rights and Department of Justice and Constitutional Development has shown that most people don’t know about either the Constitution or its Bill of Rights. This research shows that those who should stand to benefit most from its promise of social justice and equality, the poor, know the least about it.

If this is the case, the Constitution runs a real risk of being turned into a touchstone for elites and not the people it was most designed to empower.

Several weeks ago, as I took the final steps in my preparations for the 2018 Comrades Marathon, I ran up to the Northcliff tower, which sitting 1,807 metres above sea level is Johannesburg’s second highest point. Up here in a tranquil bourgeois suburb there are homes with names like Eagles Nest.

Viewed from above, Johannesburg is a remarkably beautiful city. Enveloped in a Saturday morning silence it has a tranquility that belies the wars that go on in its entrails. The people who live on the slopes of its various ridges, have captured the best views that beauty has to offer anywhere on the planet.

That they appear oblivious to the wars that go on under the wintry haze appears understandable; on the floor of the valleys below hospitals corridors and operating theatres are trashed by angry workers, women are raped, children are brutalised by poverty and crime is rampant.

Lost in the gentle contours of the city there exists a dystopian dog-eat-dog civil war of the poor.

These two in-sight-of-each-other worlds are the antithesis of the society the Constitution say it aims to create: one that will “heal the divisions of the past and establish a society founded on democratic values, social justice and fundamental human rights”.

The very first paragraph of the Constitution makes “the achievement of equality” one of its founding values – yet these two worlds are drawing further and further apart.

As the combination of economic recession and the government’s austerity budget bites deeper and deeper into key departments, life is getting more and more unbearable for millions of people….

An estimated 2.4-million children go hungry despite a constitutional promise of access to “sufficient food”; linked to this a huge one in four (27%) of children under five are stunted.

Hundreds of thousands of pupils still use dangerous toilets despite a constitutional promise of dignity, equality and basic education.

I could go on …

So, 2018 is a moment of truth for the Constitution.

In this context perhaps the biggest question good South Africans must ask ourselves now is what we mean when we say we support the Constitution? And if we do, whether we think the government has enough money to fulfil its obligations?

Twenty-two years into the life of the Constitution we have reached the moment when telling ourselves the truth about our commitment to the Constitution is becoming unavoidable, particularly about its commitment to its commitment to social justice and socio-economic rights.

Socio-economic rights are slippery things. So slippery we still don’t grasp their import. We accept we must pay for elections, State Owned Enterprises and the police. But other people’s health and education? There are reasons for this.

According to Justice Dikgang Moseneke rather than dealing with “historical structural inequality in the economy” the negotiators of the Constitution:

imposed qualified duties on the state to facilitate access to social goods such as health, housing, water, education and social grants. But these socio-economic entitlements were premised on and limited to state transfers as and when funds were available.” (My Own Liberator: A Memoir)

As and when funds were available …”

What the negotiators of the Constitution postponed to a far-off future date was the question as to what South Africans would do on the day when, in response to demands that legally binding constitutional obligations to the poor be fulfilled, the state’s ATM simply pumps out a chitty that states “No funds available.”

That day has arrived.

Recently Basic Education Minister Angie Motshekga said in a radio interview that because “there is no money” she couldn’t provide schools with libraries.

Ask yourself: Is this okay?

We must now make choices. We must also recognise that accepting the claim that there are “no funds available” means a betrayal of promises to the poor as well as a high degree of double standards by those not dependent on socio-economic rights for their dignity.

For example, if the comfortable classes were told there are “no funds available for the 2019 election” there would be outrage. But “no funds available” for safe and hygienic school toilets or for people with mental illnesses or criminals – well, …

Fortunately though, merely succumbing to our own double standards doesn’t end the story. The fact is that as things stand now our supreme law requires that funds must be available.

For example, Section 29 of the Constitution (“Education) says that quality basic education should be immediately available for all children regardless of their race or class or where they live and grow up.

The same situation exists in relation to the right to healthcare services. Here there exists a slightly less stringent duty on the government to “progressively realise access … within its available resources.”

That is, except for children where there exists an unqualified duty – which we do not meet – to provide “every child” with “basic healthcare services.”

Yet according to respected NGO the SA Depression and Anxiety Group (which gets 600 calls a day on their help-line) only 25% of people with a mental illness have access to any treatment. Do we wonder then why there are 23 suicides and 460 attempted suicides every 24 hours?

The same story applies to other areas of healthcare for which we are now repeatedly told there are simply “no funds available”.

So, do you still subscribe to the Constitution?

In my and others’ view the problem isn’t whether we can afford it. We can. The question is whether you are willing to give your consent to this government to re-organise the way we raise, spend and budget for money so as that it is able to realise these legal rights.

As the Constitutional Court has said, a mere averment that there are “no funds available” is not good enough: “it is not good enough for the [government] to state that it has not budgeted for something, if it should indeed have planned and budgeted for it in the fulfilment of its obligations.”

The government must prove that there are not resources available for a right. Can it? If you look around our society you will see we are not Somalia. The truth is, there are resources. They are just not being made available .. . to the poor.

For example, in May 2018 a well-researched submission made by the Budget Justice Coalition (a group of respected pro-poor NGOs and research organisations) to the parliamentary portfolio committee on finance showed multiple ways in which tens of billions of rand could be raised through a constitutionally driven approach to the revenue mix.

They broach introducing a 25% VAT on certain luxury goods (as opposed to increasing VAT on all goods), increasing personal income tax (PIT) and company income tax (CIT) to levels comparable with other OECD and BRICS countries; introducing a wealth tax; more efficient tax collection and expenditure and responsibly increasing borrowing levels.

Of course, the knee-jerk reaction of the rich to such proposals will be to protest loudly and threaten to move their money out of the country. I can hear the predictable squeals of dissent from business and “the markets”. But, the reports’ authors show that SA’s CIT and PIT tax levels are below the international average. They cite credible research showing how the incomes and wealth of the economically advantaged (read mostly white) have increased at a faster rate in democratic SA than under apartheid.

This cannot be right or constitutionally lawful.

The markets are not our supreme law and the ratings agencies not the market’s enforcers and if I were President Cyril Ramaphosa I would politely tell them so. He is after all, one of the architects of this constitution. But as importantly I would also try to persuade the rich about how a more stable and equal society will be better for business, security of investments and the markets; how reduced poverty and inequality will lower crime and corruption and make for a generally better South Africa for their children.

I like to believe that beneath every CEO there lies a caring human being.

If I were Ramaphosa I would also explain to the markets, the ratings agencies and bona fide international investors that realising constitutional rights isn’t an option and it isn’t just a government problem.

I would however show my own commitment by instructing elected political officials at every level of government to show solidarity with the poor and save precious resources by disavowing expensive cars, business class travel, salary increases.

I would cut every area of wasted and unnecessary expenditure from the government. Yet still, during this time of fiscal challenge, we have to ask questions of those with accumulated wealth and privilege. If our wealthy say they subscribe to the constitution, as they do, what are they willing to do to ensure its realisation?

And the answer cannot be to offer more titbits from the table (worthy as it may be a Youth Employment Scheme here and there will not cut it), but to support systematic, sustained and non-arbitrary change.

So, “can we afford the Constitution?”

I believe we can. If, after a rational and inclusive debate, we decide that “yes we can” then we must start implementing it urgently. If we decide we can’t we should be honest and say so.

The Constitution is a de facto social contract with the poor – a promissory note in return for which they granted a period of grace to attend to the mandate of equality. But if we are not going to keep our side of the bargain we should say so and puncture the hope that it offers the poor, the physically and socially marginalised; we should declare it a fake dawn and surrender ourselves to a society without rules and the pretense of solidarity and humanity.

Are we ready for that? DM

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