As we mark a 25-year milestone of our democratic transition it is necessary and inevitable to review the performance of our democratic order. This is meant to highlight progress made, gaps or failures as well as prospects for the road ahead. South Africa’s globally acclaimed Constitution (1996) enshrines the supremacy of the Constitution as the supreme law and the rule of law as the guiding principle of this constitutional order.
Understandably, given our colonial and apartheid past of division, dispossession and racial domination, the Bill of Rights is described in the Constitution as the cornerstone of democracy in South Africa. Promotion, protection and fulfilling of human rights is an obligation placed on the state to enforce or implement.
In essence, human rights as outlined in the Bill of Rights chapter of the Constitution is the anchor of all other provisions of the Constitution and laws.
Human Rights in their coded legal form have evolved in their various articulations from the mainstream Magna Carta in 1215, Bill of Rights or Declaration of Rights in 1689 in England, The American Declaration of Independence in 1776, The French Declaration of Human and Citizen Rights in the aftermath of the French Revolution in 1789 as well the post World War II United Nations Universal Declaration of Human Rights in 1948. These were preceded by works of political philosophers in different epochs of human history.
Many legal scholars who have done a comparative analysis of different constitutions around the world still rank the South African Constitution as one of the most comprehensive and progressive as it has tried to balance different generations of human rights which often have inherent contradictions or tensions in their expression.
In 1979, Czech jurist Karel Vasak provided three distinct, overarching and yet related analytical categories of human rights which are often presented as 3 generations of human rights.
First generation human rights are civil and political rights with two main sub-categories of political liberties such as freedom of expression, conscience and beliefs, association and assembly as well as political participation in one’s society. The second sub-category includes physical and civil security that proscribe torture, slavery, inhumane treatment, arbitrary arrests and equality before the law. These rights mainly emphasise on individual liberties that enable free participation in political and civic life. These protect individuals from potential abuse by the state in the main.
Second generation human rights are socio-economic rights mainly compelling government to meet or create conditions for the fulfilment of some basic needs to enhance human dignity. These require the government to affirmatively provide social-economic necessities such as shelter, health, clean water, education and social infrastructure.
Third generation human rights are mainly on collective developmental rights which in some literature is referred to as solidarity rights of people and groups. These include self-determination, environmental laws, humanitarian assistance, right to peace, rights of linguistic and cultural communities. This category also emphasises sustainable development and rights of future generations.
With the evolution of new technologies that range from genetic engineering to artificial intelligence as well as current trends of fusing human and technological capacities, there is an evolving complex discourse on the possibility of fourth generation human rights to deal with ethical and developmental implications of current and exponentially developing technologies.
South Africa has done well in establishing the infrastructure of democracy and enforcement of the first generation political-civic rights as shown by the separation of power, an independent judiciary, Chapter 9 institutions and range of freedoms. Even political leaders have been held accountable as an affirmation of the rule of law.
In terms of the second generation of human rights there is a mixed record of success as we saw the provision of social grant that has grown from 2.6-million in 1994 to over 17.5-million recipients in 2019, electrification, provision of social infrastructure in face of ever-growing needs and sometimes poor maintenance, phasing in of free education at lower levels of basic education and increasing support for indigent students in higher education. However, corruption, poor institutional capacity and range of other factors have inhibited greater impact in these areas of intervention.
Within this period of 25 years SA has become one of the most unequal societies in the world, colonial/apartheid geography still exhibit the entrenched legacy of the racially segregated past, distribution of wealth and access to credit, inter-generational poverty as well as general failure of inclusive people-centred economic growth and development are some of the indications of massive failure of the application of the second and even more so, the third generation human rights.
Part of the reason for this failure is the general tendency of liberal capitalist democracies to put emphasis on the individualistic civic-political rights to the exclusion of socio-economic rights as well as sustainable development that takes into account general development of society with particular focus on vulnerable and previously disadvantaged groups. Intuitively this ought to have been the main focus of our democratic transition given the history of our past racial, gender, class and cultural domination.
Consequently, the dominant social classes have been able to frame the discourse to emphasise the individual civic-political rights often to the exclusion of the other rights. This is further compounded by the inhibitive legal cost of accessing the justice system and the capacity limitations of chapter 9 institutions to deal with the backlogs. The irony is that the advantaged and well-resourced individuals and groups have been able to take full advantage of the Constitution to prevent transformation and social justice envisaged by the Constitution.
It is for this reason that there is a political tidal wave demanding transformation, land redistribution, distribution of wealth, living wages and meaningful employment.
Underlying this is a recognition that vulnerable people at the bottom of the socio-economic ladder can hardly have the leverage to exercise or have the full appreciation of the civic-political rights if they operate from a very weak social base as they are vulnerable to manipulation by the well-resourced economic, social and political classes or elite. The state ought to exercise positive discrimination that sometimes limits or encroaches on the first generation human rights in order to affirmatively intervene on behalf of the vulnerable and historically marginalised.
This will require conviction, visionary leadership which can balance three vital requirements for nation-building: decisively deal with and eradicate the legacy of colonial/apartheid past, forge national unity and inclusive development for social justice and prosperity.
For this ultimate goal to be realised all key role players must understand, accept and appreciate necessary, sometimes difficult, trade-offs, sequencing and interplay of the three generations of human rights as stipulated in our Constitution. Clarity of vision, getting our priorities and systems right will be one step towards addressing historical injustices while positioning us to compete and prosper globally as well. This balanced application or implementation of the three generations of human rights will ultimately protect our constitutional order from suffering legitimacy crisis if it is perceived as not delivering for the poor and disadvantaged or vulnerable groups. DM
"You can't wait for inspiration. You have to go after it with a club." ~ Jack London