Let's Think

Why South Africa’s Bill of Rights is ineffective

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As long as the strangle-hold on the ANC by the faction associated with President Jacob Zuma remains in place, so long will the country’s celebrated Bill of Rights remain mostly just “ink on paper.”

The constitution recognises that all human rights are interrelated – besides rights to vote, freedom of expression and a fair trial – citizens can also approach the courts when they believe that the government has failed to take reasonable steps to fulfil their rights to housing, health care, food, water and social security.

“Without material security and the means to a dignified life, many of the civil and political freedoms in the Bill of Rights will ring hollow,” wrote Professor Sandra Liebenberg in an recent article for The Conversation.

Why has it happened?

In a statement on Human Rights Day last week, the Nelson Mandela Foundation (NMF) said it observed‚ with a heavy heart‚ an alarming rise in the number of South Africans who daily forgo their human rights.

Noting that 26% of households in the country lived with hunger, it said “We need to look at how we lift the ink from the paper of our constitution and ensure that its promises deliver in the everyday lives of the people of this country.”

But, what has gone wrong?

While we agree with the NMF that there is a “shared political responsibility between government and corporate South Africa, the heavier responsibility rests with the party that has been governing the country since 1994. It is its responsibility to create the enabling environment for a caring society.

And, initially it went well, as testified by the fact that some 17 million poor people – a third of the population – presently receive social grants. But, why did even that came under heavy pressure in recent times?

The lived reality for millions of South Africans remains one of poverty and social exclusion while the government has failed to create a strong, ethical, and pro-poor public service to regulate private power effectively and to take the re-distributive measures mandated by the constitution.

To the contrary, in recent time news headlines have been dominated by indications that private wealth and special interest groups has gained a disproportionate influence on the levers of state power and, wide-spread corruption has become entrenched.

South Africa, at the hands of a faction inside the ANC, has descended into a trap that has destroyed progress in a number of emerging countries across the globe.

It is a process that often starts when a single political party captures the levers of state power and its institutions, turning it into effectively extensions of the party – in the process destroying the system of checks and balances, so essential to a healthy democracy.

Case study 

Keeping in mind the dominating news on the socio-political terrain in South Africa, especially since 2008/09, contemplate what general Georges Sada wrote in his biography (Saddam’s Secretas; Integrity Publishers, 2006) about Saddam Hussein and his Baath Party (BP) did to Iraq:

“Things in Iraq were getting progressively worse….. Why? Because in every area of our lives, we were at the mercy of second-rate party officials and bureaucrats …”

State structures were built “on the basis of blind loyalty to Saddam (and BP). Capturing all state resources “the party understood that rewarding party members with jobs and money and other benefits was the best way of preserving their own authority and power.”

Almost from the word go, the ANC set out to monopolise power via its policy of “cadre deployment,” and then towards the end of their first decade in power, the party itself was captured by the deployment of members of a faction within the party to the key levers of power.

Like what happened in Iraqi, corruption became the order of the day, and as Liebenberg puts it: “When corruption becomes entrenched, government is no longer able to govern in the interests of society as a whole, particularly those most disadvantaged.

“Such developments undermine the state’s ability to dismantle the deeply seated structural barriers which prevent a more just distribution of resources in the country.”

Positives

South Africa, however still has some positives going for it, as an independent judiciary and Chapter 9 institutions, mandated by the constitution.

But even these institutions can do just so much when the professionalism, and independence of public administration is hollowed out, something illustrated by a report in April last year by the Public Service Commission (PSC) on the efficiency of the Office of the Chief State Law Adviser.

It revealed how the legal opinions “are not always genuine and impartial”, but drafted to satisfy the leadership of the institution, with advice on legislation often “pro-executive- or executive-minded”, creating a “conflict of interest” in the roles of advisers – in short, it tells the story of lawyers under pressure to give politicians the advice they want to hear, rather than the advice they should get.

It is now a year later, and the PSC report has disappeared from the radar, apparently also in the relevant parliamentary committees, gathering dust on a shelf.

How all pervasive and dangerous to the regime of checks and balances this trend has become, is illustrated by the news that parliament, charged with holding the executive to account, has recently filled four senior management positions after head-hunting candidates with close ties to the ANC, while about 300 junior to mid-level positions remain frozen.

From this vantage point, the remaining “positives” in the country’s constitutional construct is starting to run dangerously thin.

Immediate future

Those of us worried about the health of our democracy will be anxiously waiting to see how the factional battles inside the ANC plays out in the months ahead and finally at the ANC’s elective conference in December.

Election 2019 just might become the last change to save true democracy in the country.

by Piet Coetzer

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