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Human rights in South Africa – a paradox of strong commitments and weak outcomes

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Dr Brij Maharaj is an academic and civil society activist.

South Africa has fallen from its great global pinnacle as a leading advocate for socioeconomic rights, into the deep abyss of corruption and reckless dereliction and abandonment of duty and responsibility by those who took the sacred oath of high office.

The Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations on 10 December 1948, and it recognised the “inherent dignity and… equal and inalienable rights of all members of the human family” as the “foundation of freedom, justice and peace in the world.”

The Hindu equivalent of the human family is Vasudev Kutambhakamthe world is one family and all humans are connected (Maha Upanishad, V. 71), written about 5,000 years ago. 

The African equivalent is ubuntu – I am because you are, which “embraces the idea that humans cannot exist in isolation. We depend on connection, community and caring – simply, we cannot be without each other.”

Initially, the focus was on civil and political rights, considered a first-generation right. Economic, social and cultural rights were categorised as second-generation rights and did not receive the same focus and attention as first-generation rights. This was because of the ideological divide between the West and the Soviet bloc, with the former focusing on first-generation rights and the latter on second-generation rights.

However, by the late 1960s, there was agreement that first- and second-generation rights were indivisible and interdependent. 

For example, the 1969 Proclamation of Teheran stated that “since human rights and fundamental freedoms are indivisible, the full realisation of civil and political rights without the enjoyment of economic, social and cultural rights is impossible”.

At the turn of the 21st century, the United Nations Development Programme (UNDP) contended that human rights were critical for realising development goals: 

“Only with political freedoms – the right for all men and women to participate equally in society – can people genuinely take advantage of economic freedoms.”

Furthermore, the UNDP emphasised that human rights and human development are symbiotic, reciprocal and mutually reinforcing: 

“Human rights express the bold idea that all people have claims to social arrangements that protect them from the worst abuses and deprivations – and that secure the freedom for a life of dignity. Human development, in turn, is a process of enhancing human capabilities – to expand choices and opportunities so that each person can lead a life of respect and value.”

Nobel laureate Amartya Sen’s influence (development was “a process of expanding the real freedoms that people enjoy” by providing options, opportunities and possibilities), is evident.

In keeping with international progressive trends, post-apartheid South Africa is a rights-based constitutional democracy. 

The explicit human rights orientation was very evident in the preamble of the Constitution, which was intended to:

  • Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
  • Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
  • Improve the quality of life of all citizens and free the potential of each person; and
  • Section 9 of the South African Constitution entrenched “the full and equal enjoyment of all rights and freedoms.” 

More specifically, social and economic rights were constitutionally enshrined: “Everyone has the right to… adequate housing… healthcare services… sufficient food and water… social security… (and) to an environment that is not harmful to their health or wellbeing”.

Furthermore, the state must “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights” (emphasis added).

The South African Human Rights Commission (SAHRC) emphasised that “every right in our Constitution is equal. Rights are dependent on each other. For example, without food, it is difficult to learn at school and get an education. The rights apply to all in our country, children, prisoners, non-nationals and the aged.”

The South African Constitution recognises first-, second- and third-generation rights – civic, political, social, economic and environmental rights respectively. 

South Africa was unique because it was the first country to entrench socioeconomic rights constitutionally. 

The UNDP acknowledged this in 2000 when it contended that post-apartheid South Africa has “put human rights at the core of its development strategy, with… the world’s most forward-looking structures of rights.”

Regrettably, South Africa has since fallen from this great global pinnacle as a leading advocate for socioeconomic rights, into the deep abyss of corruption and reckless dereliction and abandonment of duty and responsibility at all levels of government by those who took the sacred oath of high office.

In the second and third democratic decades, violations of socioeconomic rights (healthcare, food, water, education) ranked in the top three complaints to the SAHRC.

Disgracefully, as reported by GroundUp in April 2023, there were still more than 66,000 pit latrines in Limpopo schools, and, tragically, some children have fallen and drowned in these pits. 

Tiny Lebelo from the Equal Education human rights group said that the message from the government was loud and clear – poor, rural people are not worthy of dignity.

While it is difficult to assess the extent of hunger in South Africa, in December 2023, the NGO SA Harvest estimated that 20 million South Africans, comprising 30% of the population, go to bed hungry daily, and a significant proportion are children.

In August 2022, the SAHRC’s Eastern Cape office inquiry into child malnutrition and the right to food concluded that a “substantial percentage of children in the Eastern Cape are suffering from various forms of malnutrition… Child malnutrition is not merely a concern for the wellbeing of the affected children; it is a stark violation of their rights to food and nutrition, dignity, life, equality, social assistance, health and education.”

South Africa has one of the highest rates of crime and violence for a country not at war, with 75 murders and 400 robberies daily. More specifically, gender-based violence (GBV), is reaching pandemic levels and is widely viewed as a violation of the human rights of women.   

In the third quarter of 2023, Police Minister Bheki Cele said that South Africa recorded 10,516 rapes, 1,514 cases of attempted murder, and 14,401 assaults against women.

Xenophobic violence continues, with few arrests and convictions. In an election year, the majority of the political parties are spewing xenophobic bile. As South Africa’s democracy fails to deliver to the poor, politicians search for scapegoats, and foreign migrants are sitting ducks.

In March 2022, SAHRC Commissioner André Gaum stated that as “one of the most unequal societies in the world”, South Africa’s “record with respect to socioeconomic rights is inconsistent with the values and ideals of the Constitution”.

Professors Sakiko Fukuda-Parr and Viviene Taylor have referred to the failure to comply with the constitutional obligation to advance and protect fundamental human rights as a “paradox of strong commitments and weak outcomes for economic and social rights”. DM

 

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  • Charles Butcher says:

    The human rights issue is only for the nguni speakers NOT THE TRUE INDIGENOUS or the White’s soo the truth is out at last

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