My recent piece in Daily Maverick celebrating Freedom Day with the admonition that freedom is a responsibility not an entitlement, elicited an unexpected response from Martin Dreschler who wrote:
“How exactly do you expect someone like Palesa Mosa to hold herself to the Bill of Responsibilities, hold those who serve her to the Pledge, make an integrity pledge of her own and insist that the state respects and protects her rights and freedoms guaranteed to all in the Bill of Rights?”
These are good questions, deserving of thorough consideration and a careful response.
Palesa Mosa is an impoverished Stellenbosch resident who came to the attention of Prof Thuli Madonsela when she indicated that democracy has not served her or her poorly educated children well. Her plight is shared by the majority of the population; 60% of those living in SA are expected to get by on about R1,000 per month. Poverty, inequality and joblessness stalk the land, exacerbated by the pandemic.
By acquainting themselves with the Bill of Responsibilities, a poster of which should be placed in every public building in the land, the “currently disadvantaged” would be taking the first step towards becoming active citizens in our participatory constitutional democracy that SA is meant and designed to be, not passive subjects in an oppressive state, as was the default position under apartheid.
The fact that the pre-1994 parliamentary sovereignty was excessively oppressive of those of the gender and “racial classification” of Ms Mosa ought not to be confused with the fact that we now live in a non-sexist and non-racial constitutional order. A new order that can only be made real when we all know our rights and assert them. The classifications of the apartheid era were entirely manufactured, biologically unfounded and were used to oppress the majority of citizens of the old SA. We should by now, so many years after 1994, have embraced the fact that we are all part of the human race, united in our diversity and working toward the full realisation of our dignity and equality as well as for freedom of all.
These are the promises of the Constitution, fulfilling them is the task of everyone who manages to shake off the acquiescence of being a passive subject. It is high time that we all actively embrace the constitutional project on which the “Rainbow Nation of God” (as Archbishop Desmond Tutu described SA after its liberation from the yoke of oppression) has embarked.
The first step towards embracing the Bill of Responsibilities is to acquaint oneself with the Bill of Rights and with the parameters of the new constitutional order. Mosa and all those who share her frame of mind can obtain access to the handbook on the Constitution called “Know Your Rights, Claim Your Rights” on the website of Accountability Now, where it is available for free download. (accountabilitynow.org.za). Written by non-lawyers in plain English, Afrikaans and isiXhosa and illustrated with Tony Grogan cartoons aplenty, the handbook is an easy and accessible way to understand that freedom requires responsible effort by all citizens if it is to be realised in SA.
There are many pledges available in the new SA. One of them, promoted by the Estate Agency Affairs Board, resonates well with the type of activity that is required to nurture active citizens. Here is its full text:
“All national groups shall be protected by law against insults to their race and national pride.”
The Freedom Charter
The Republic of South Africa is one, sovereign, democratic state founded on the following rights and freedoms:
- Human dignity, the achievement of equality and the advancement of human rights and freedoms;
- Non-racialism, and non-sexism.
The Constitution of the Republic of South Africa
“No one is born hating another person because of the colour of his skin, or his background, or his religion. People must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite.”
- I pledge to treat everyone with dignity, fairness and respect;
- I pledge to work towards eliminating discrimination, whether by reason of race, gender, sexual orientation, ethnicity, nationality, disability, age or religion;
- I pledge to demonstrate respect for equality and diversity, and ensure that prejudice and discrimination do not go unchallenged;
- I pledge to promote a safe, fair, equitable and diverse working environment;
- I pledge to make human rights values part of my everyday life and language; by listening, learning, communicating and educating; and by being open minded and impartial;
- I pledge to uphold the principles of anti-discrimination in the real estate industry; and
- I pledge to aggressively promote professionalism in the real estate industry and work towards creating a robust environment free from discrimination in all its forms.”
This pledge is easily adapted to any profession or workplace; it captures the essence of the constitutional project and creates the atmosphere necessary for nurturing constitutionalism of the SA brand. The Estate Agency Affairs Board deserves praise for creating and promoting it.
Those who have literacy difficulties with the written word can join or help to form a WhatsApp group that is run by the Peace Centre for the purpose of promoting active participation in the workings of the constitutional order now in place, an order applauded by the world and ignored by too many in SA.
Martin Dreschler’s second question relates to holding those who serve the public in SA to their pledge.
The content of the pledge is based on the principles and values that bind the public administration and those who work in the state-owned enterprises in SA. The pledge in essence sets out how the country should be run as a developmental state in which high ethical standards and accountability are the order of the day.
Anyone who is aware of maladministration is entitled, at no personal cost, to complain to the Office of the Public Protector about their problem, whether it is State Capture, potholes in the street, broken sewage works, pit latrines at schools or any of a host of ailments all too common because of the failed and illegal cadre deployment policies of elements in the government. The Public Protector investigates, reports and directs that appropriate remedial steps be taken to remedy maladministration. This is a most powerful tool in the hands of all South Africans. Too many do not use it because they do not know about it. This fault can be remedied by public education.
The willingness of leading lights in the legal professions to involve themselves either pro bono or on contingency in public interest litigation is well documented.
Any threat to or infringement of human rights guaranteed to all in the Bill of Rights is fair game for investigation by the Human Rights Commission. Similarly, issues of gender and of cultural, religious or linguistic nature can be reported to the Chapter Nine Institutions created for that purpose and to bed down constitutional democracy in the imagination and actions of the public. Here too, the complaints procedures are simple and free. It is no use taxpayers paying for the Chapter Nine Institutions if we do not use them. Many civil society organisations exist to help people with valid complaints to use the machinery available under Chapter Nine of the Constitution.
Making a pledge of one’s own is a matter of personal choice. If we embrace the content of the pledge prepared by Chuck Stephens of the Desmond Tutu Centre for Leadership we will find that we become better persons for it; all of its content is as wholesome as motherhood and apple pie.
Insisting on delivery of human rights is based upon the constitutional obligation of the state recorded in Section 7(2) of the Bill of Rights. It lays down that the state “must respect, protect, promote and fulfil” all of the rights guaranteed in the Bill of Rights.
It is sometimes necessary to resort to litigation after all efforts via Chapter Nine Institutions, ombudsman bodies and political representatives fail. Public interest litigation is pursued by a variety of civil society institutions and by the legal aid clinics at all universities which have a law faculty. Once again services are available free.
As an acquaintance of Prof Madonsela, Ms Mosa is well placed to get the ear of the most excellent clinic run by the University of Stellenbosch. If they are conflicted or over-committed, UWC and UCT also have clinics and the Legal Resources Centre has helped many thousands of impoverished people to claim their rights over the years. Other NGOs are active in specific areas as are the Socio-Economic Rights Institute and the Centre for Applied Legal Studies at Wits.
Those with means, energy and determination to fight the threats to or infringement of their human rights are well served in SA — consider the Aids patients who litigated their way to treatment, the rail commuters who sued for safer trains, the evicted farm workers, the squatters, and all those who have been prepared to stand up for the rights they cherish most. The law reports are replete with the rulings in their favour. The willingness of leading lights in the legal professions to involve themselves either pro bono or on contingency in public interest litigation is well documented.
Shortly South Africans will receive the recommendations of the Zondo Commission. They will be aimed at preventing a repetition (or continuation) of the culture of corruption with impunity that shook the state in recent years. It is likely that the deputy chief justice will admonish the general public to nurture their rights and freedoms with greater attention to detail and a more participatory mindset too. The type of questions posed by Mr Dreschler will fall away if that change in mindset becomes endemic. DM