HUMAN RIGHTS DAY LECTURE

Author: Professor Sandra Liebenberg

03 April 2012

Edited version: www.capetimes.co.za

Introduction:  Human rights in South Africa’s constitutional pact

In 1993 South Africans adopted a transitional Constitution which represented a negotiated settlement to bring to end decades of white minority rule and the systemic discrimination and repression of the apartheid era. This transitional or interim Constitution is eloquently described in its postamble as “a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.” The 1993 transitional Constitution required that the final Constitution to be adopted by the Constitutional Assembly (consisting of the two houses of parliament elected in the first democratic elections sitting together) to comply with 34 Constitutional Principles. Amongst the most important of these was the second Constitutional Principle which provided:

“Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched and justiciable provisions in the Constitution… .”

The Constitutional Court was required to certify that the 1996 Constitution complied with these 34 Principles which it eventually did on 4 December 1996 after an amended draft of the Constitution was presented to the Court by the Constitutional Assembly. This Constitution entered into force on 4 February 1997.

The Bill of Rights has been widely hailed both in South Africa and abroad as innovative and visionary. It is a holistic Bill of Rights which recognises all the central capabilities that humans require to flourish in a modern, democratic society:

• a clause recognising the historical imperative for restitutionary equality and guaranteeing substantive equality on a range of grounds including race, sex, gender, sexual orientation, culture or religion, disability and a number of other grounds;[1]
• freedom of religion, expression, association and political rights;[2]
• fair trial rights[3]
• environmental rights;[4]
• a comprehensive set of socio-economic rights, including labour rights, equitable access to land, access to housing, health care, food, water, social security, education;[5]
• a clause specifically protecting internationally recognised children’s rights;[6]
• rights which are intended to foster accountability, openness and participatory democracy in both the public and private spheres, particularly the rights to administrative justice and access to information.[7]
• The Bill of Rights and the Constitution as a whole is also attuned to the fact that we are a diverse, multi-cultural country which functions within an African context. There are a number of provisions which seek to protect and foster cultural and religious diversity, and which recognise customary law and institutions of traditional leadership.[8]

Founding constitutional values

The founding constitutional values are human dignity, freedom and equality. Although not explicitly contained in the text of the 1996 Constitution, the Constitutional Court has in many judgments held that the value of uBuntu – “the deep cultural heritage of the majority of the population suffuses the whole constitutional order.” In the words of Justice Albie Sachs:

“It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern.” [9]

The other foundational constitutional values are non-racism and non-sexism, the supremacy of the Constitution and the rule of law, and a multi-party system of democratic government to ensure accountability, responsiveness and openness.[10]

Enforcement of rights

Another significant feature of the Bill of Rights is that it allows for human rights to be enforced not only against the State, but also against private parties where necessary and appropriate.[11] In other words, the South African Bill of Rights is ahead of the times in recognising what is increasingly acknowledged internationally that people needed to be protected not only against abuses of public power, but also against abuses of human rights committed by powerful private parties such as multinational corporations, banks, medical aid schemes and the like. It recognises that all sources of law must be developed to promote human rights values and provide effective redress for violations of human rights by private parties.[12]

All of these rights can be enforced by the courts with the Constitutional Court being the highest court in constitutional matters. The bearers of these rights have wide standing to approach the courts, including by bringing class actions or actions in the public interest. The courts in terms have broad powers to grant just and equitable remedies to put a stop to human rights violations, grant concrete relief to the victims of human rights violations, and deter future violations of these rights. As Justice Ackermann for the Constitutional Court has observed, “particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated.” He went on to say, that the courts “have a particular responsibility in this regard and are obliged to forge new tools and shape innovative remedies, if needs be, to achieve this goal.”[13]

Although time does not permit to review all the highlights of the court’s enforcement of these rights, many of the judgments of the Constitutional Court have been acclaimed, both within South Africa and internationally. These include -

• Declaring the death penalty unconstitutional;[14]
• The rigorous protection of the rights of gay persons and partnerships including the recognition of the rights of same-sex couples to enjoy the same status, entitlements and responsibilities as marriage laws accords to heterosexual couples.;[15]
• According women the right to sue the Ministers of Police and Justice for perpetrating violence against them or failing to take reasonable measures to protect them against violence by private parties;[16]
• A number of decisions in various sphere affirming the rights of people to have a say and participate in decisions which fundamentally affect them;[17]
• The Court’s socio-economic rights jurisprudence including its landmark decisions in the areas of anti-retroviral medication to prevent mother-to-child transmission of HIV; housing and evictions, as well as social security.[18]
• The constitutional duty on the State to establish and maintain an independent, effective body to combat corruption and organised crime.[19]

The legislature too has enacted important legislation to give effect to constitutional rights – the Restitution of Land Rights Act 22 of 1994; South African Schools Act 84 of 1996, Promotion of Access to Information Act 2 of 2000, Promotion of Administrative Justice Act 3 of 2000, the Promotion of Equality and Prevention of Unfair Discrimination 4 of 2000; Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998; Extension of Security of Tenure Act 62 of 1997, National Water Act 36 of 1998, Domestic Violence Act 116 of 1998, Recognition of Customary Marriage Act 120 of 1998, Social Assistance Act 13 of 2004, Consumer Protection Act 68 of 2008 (to name but a few).

Transformative constitutionalism

In 1998, Prof Karl Klare of Northeastern University in Boston published a celebrated article in the South African Journal on Human Rights in which he described the South African Constitution as “a transformative constitution” By this he meant:

“…a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through non-violent political processes grounded in law.”[20]

This notion of transformative constitutionalism has found deep resonance not only in academic scholarship on the Constitution, but in the jurisprudence of the Constitutional Court.[21] It can thus be seen to be embedded within the fabric of our South African constitutional culture.

As should be evident from the description of various features of the Bill of Rights and Constitution described above, they provide a highly conducive normative and institutional framework to advance the constitutional goals of a society founded on ‘democratic values, social justice and fundamental human rights’ as well as an improvement in ‘the quality of life of all’ and the freeing of ‘the potential of each person.’[22]

Cracks in our constitutional foundations?

But do we have reason to be concerned that this foundation of the South Africa’s post-apartheid political and social edifice is showing signs of strain? Certainly cracks do seems to be appearing with increasing signs of government wanting to exert greater control over our independent media through the proposed Media Appeals Tribunal, as well as the introduction of the widely criticised Protection of State Information Bill (dubbed ‘the Secrecy Bill’).

In addition, certain statements by senior ANC members and members of government in the past two years regarding the fundamental constitutional pact have given rise to deep disquiet amongst many sectors of the population.

In an article published in the Times Live on 1 September 2011,[23] Deputy Minister of Correctional Services and ANC NEC member, Ngoako Ramathlodi wrote that the effect of the constitutional settlement was to surrender of “elements of political power to the black majority, whilst immigrating substantial power away from the legislature and executive and investing it in the judiciary, Chapter 9 institutions and civil society movements.” The result was that the black majority was handed “empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society.” He went on to argue that elections had become “regular rituals handing empty victories to the ruling party” while minority parties and civil society ran to the courts – “where the forces of change still hold relative hegemony” – to challenge as many policy positions as possible.

Although not in as extreme a form, criticisms of constitutional judicial review as serving to undermine the prerogative of the democratically elected legislature to set policy has continued to be voiced by senior ANC figures.[24] The chorus has been loud enough to lead former Chief Justice Arthur Chaskalson to pose the question whether those who blamed the constitution for lack of transformation want a return to the system of parliamentary supremacy in which human rights are not entrenched and the judiciary has minimal powers to curtail human rights violations by parliament and the executive.[25] He concluded: “If this is what they want, they should say so.”

Reviewing the Judiciary

It is within this context that Cabinet announced on 23 November 2011 its intention to conduct a review of the impact of the decisions of the Constitutional Court. The background and purpose of this review is elaborated upon by the Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in a Developmental South African State published by the Ministry of Justice and Constitutional Development on 28 February 2012.[26] The Discussion Document envisages that the services of research institution(s) will be engaged to conduct the assessment which will include “a comprehensive analysis of the impact of the decisions of the Constitutional Court, since the inception of the court, on the transformation of the state and society and how the socio-economic conditions and lives of people…have been affected by such decisions within the context of a transformative Constitution.” The assessment will also include an analysis of the extent to which all branches of law have been or should be transformed to give effect to the transformative goals envisaged by the Constitution.

It should at the outset be noted that up to now government has by and large respected the decisions of the courts and given effect to the judgments of the Constitutional Court. At times it has been slow to implement decisions. For example, following the landmark judgment of the Constitutional Court in the Grootboom case,[27] it took almost three years for the emergency housing programme which the Court declared was required by the right of access to adequate housing in s 26 of the Constitution to be adopted.[28] The tardy and sometimes non-compliance by certain government departments with judgments sounding in money against them, led to the Constitutional Court declaring a section of the State Liability Act, 1957 unconstitutional to the extent that it did not allow for execution or attachment of the assets of the state to enforcement payment of these judgment debts.[29]

Many of the objectives of the review contained in the Department of Justice and Constitutional Development’s Discussion Document relate to legitimate and necessary institutional reforms to improve the functioning and efficacy of the judiciary. These, include, for example, supporting the Office of the Chief Justice, the South African Judicial Education Institute and the South African Law Reform Commission. The Constitution Seventeenth Amendment Bill[30] is currently before Parliament. One of the major amendments which this Bill proposes to introduce is an expansion in the powers of the Constitutional Court to make it the apex court of appeal in all matter. Previously, it only had jurisdiction over issues designated as “constitutional matters”, but in a constitutional state where all law derives its force from the Constitution and is subject to constitutional control,[31] the distinction between constitutional and non-constitutional matters makes little sense. This is thus an important and welcome constitutional amendment to facilitate the development of all branches of law consonant with constitutional rights and values.

What is of concern is whether the proposed review of the transformational impact of the decisions of the Court and the recommendations which will flow from this review signals an intention to interfere with the independence of the judiciary. This would be in direct conflict with s 165(4) of the Constitution which requires organs of State to “assist and protect the courts” to ensure their “independence, impartiality, dignity, accessibility and effectiveness.” The Court is required to hold all organs of State accountable to their obligations under the Constitution, including the Bill of Rights. It must perform this function “impartially and without fear, favour or prejudice.”[32] It is thus not appropriate that the legislative or executive branches of government attempt to prescribe or even recommend to the Court how it should exercise its responsibility to adjudicate disputes in terms of the Constitution.[33] Mutual respect for the institutional roles and functions of each of the three branches of government is also fundamental to the separation of powers doctrine which forms part of our constitution.

This is decidedly not to say that the judiciary should be immunised from criticism or from evaluating its role and impact in advancing fundamental constitutional goals. Studying and critiquing the judgments of the courts in various spheres occurs on a daily basis in academic conferences and publications as well as through civil society debate and advocacy. Such criticism is not only valuable as an academic project, but helps to promote public accountability for the exercise of judicial power. However, such criticism is largely not – nor should it be – aimed at attempting to influence how the court decides cases before it. Trying to persuade the courts to decide cases in a particular way is the role of parties and amici curiae in litigation and is conducted through accepted methods of legal pleadings and argumentation. One worries that the Discussion Document represents a veiled attempt to get the judiciary to sing to a particular song-sheet. Perhaps this is a needless worry, part of the “hysterical, uninformed and destructive” reaction criticised in the Discussion Document to the dialogue which government is attempting to stimulate on the role of the judiciary in a transforming society. However, one must be forgiven for being wary given the context of the on-going criticism by senior ANC and government figures of the use of the courts to subvert the government’s political and administrative mandate resulting from popular democratic elections.

Coming to terms with constitutional democracy

These criticisms suggest a failure to come to terms with the nature of South Africa’s constitutional democracy. The Bill of Rights is described in the Constitution as “a cornerstone of democracy in South Africa.”[34] This is in contrast to the rhetoric which suggests that the Bill of Rights is diminishing democracy in South Africa. On the contrary, it suggests that human rights advocacy (such as submissions to parliament and legislatures, media campaigns, demonstrations and like) and rights claiming (such as making a complaint to the SA Human Rights Commission or Commission for Gender Equality or instituting litigation in the courts) can enrich and lend vibrancy to the system of representative democracy established by the Constitution.

Democracy in a constitutional state such as South Africa does not consist of a blank cheque handed to the ruling party once every 5 years at election time to govern the country as it sees fit. It envisages active participation by the citizenry in the myriad of policy and legislative choices which have a profound impact on their fundamental rights between elections.[35]  As former Chief Justice Ngcobo wrote in the Doctors for Life case[36] on the significance of public participation:

“The participation by the public on a continuous basis provides vitality to the functioning of representative democracy.  It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made.  It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of.  It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice.  It strengthens the legitimacy of legislation in the eyes of the people.  Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.[37]

Transformation on this view does not consist simply of government delivering services to a passive citizenry according to its own vision of what is in their interests. Instead, the Constitution and particularly the Bill of Rights envisages the people of South Africa giving voice to their vital needs and interests, contesting and challenging official policy prescripts, and participating actively in the implementation of government programmes. Such active participation can be irksome to those in power and who seek only to get the job done. However, it advances all the important values of public participation identified by former Chief Justice Ngcobo CJ in the above quotation. It helps to ensure that government is responsive to the needs of the governed and is held accountable, through various forums, for the impact of its actions or omissions on human rights.

What then is the respective role of the three branches of government in advancing the rights-based vision of transformation endorsed by the Constitution? The primary responsibility for implementing and giving effect to the Bill of Rights is placed by the Constitution on the legislative and executive branches of government. They must, in accordance with section 7(2) of the Constitution, ‘respect, protect, promote and fulfil” the rights in the Bill of Rights. In this regard they have broad latitude to adopt legislative and policy measures as well as social programmes. However, the people of South Africa have the right to argue that such policies and programmes fail to comply with the State’s obligations in terms of the Bill of Rights, and the Constitution gives them the ultimate right to turn to the courts to test whether such measures, or the failure to adopt reasonable measures, are constitutionally compliant when they are challenged by litigants. In this regard, the Constitutional Court has repeatedly indicated that it will respect the institutional roles and capacities of the legislative and executive branches of government whilst not abdicating its responsibility to protect and enforce constitutional rights.[38]

Attaining the optimal balance between judicial activism and restraint is a complex issue on which there is much academic literature both in South Africa and abroad. Provided this deliberation does not undermine the independence, impartiality and dignity of the courts, this is an important issue on which there should be on-going academic and public deliberation. However, we should be vigilant to ensure that the foundations of our constitutional pact – particularly the Bill of Rights reflecting the struggle for freedom, dignity and equality, and the courts as guardians of these rights – are not compromised. If this is allowed to occur, we will deprive ourselves as a nation of our most powerful tool for advancing democratic transformation in South Africa.

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