SA’s human rights commitment laudable but not ironclad

Human Rights Day is one of those quintessentially “new South African” institutions. It was part of the list of post-1994 celebrations that attempted to give the nod to a divisive history and memories that were sacred to some but potentially deeply alienating to others. Human Rights Day was created to allow the memorialisation of the Sharpeville Massacre of 1960, an event long commemorated by the liberation movement but repurposed so as to appeal to one of the universalist aspirations of the new society.

Who, after all, couldn’t find some inspiration in the concept of human rights?

Human rights was a foundational concept for post-apartheid South Africa. It wasn’t just a matter of recognising common citizenship and safeguarding against the abuses that had so characterised the past, but about asserting an irrevocable claim on human dignity by mere virtue of being a human being. The memory of Sharpeville embodied this: a protest against racially discriminatory injustice, a violent state response, and the 91 deaths, hundreds of injuries, and multi-generational trauma that followed from it.

The 1996 Constitution placed human rights at the front and centre of public life. The first founding principle listed was “human dignity, the achievement of equality, and the advancement of human rights and freedoms”. This was also to inform South Africa’s global presence, with pledges that the new society would prioritise the promotion of human rights in its foreign policy.

Indeed, South Africa’s Constitution not only guaranteed a comprehensive suite of traditional rights – the right to life, freedom of speech, assembly, religion, and so on – but also so-called second and third-generation rights. In other words, human rights were understood to mean not only civil liberties, but socio-economic well-being and a healthy environment.

South Africa today is on many fronts a greatly changed society, not least in the public mood. Those early years, challenging though they were, were marked by a sense of optimism. South Africa had avoided the cataclysm that threatened it prior to transition; the country was well respected; its institutions were generally sound; and there were the beginnings of an economic turnaround.

Today, there is a palpable sense of pessimism over South Africa. The cumulative effects of reckless politics, broken governance, and anaemic economic growth weigh heavily. Afrobarometer’s last poll, in 2022, found that a staggering 83% of South Africans believed the country to be going in the wrong direction.

But for all its failings, South Africa remains a constitutional democracy. Does the promise of South Africa as a haven of human rights still hold up?

In some respects, the human rights commitment has weathered deteriorating circumstances.

The country remains free. Strident criticism of the government is unremarkable and typically brings no more than an intemperate response. The country has an intricate and deep-rooted associational culture in every sphere of societal activity – the Jewish community being an exemplar of this. Protest action is an everyday event. The courts have provided a critically important check on the power of government, and have generally performed this role honourably.

Such elements provide indispensable protection for South Africa’s prospects as a democracy. The country’s people – individually and collectively – are attached to their civic freedoms. They exercise them enthusiastically. This is despite the often bombastic claims of the African National Congress about its role as a natural leader of society.

The late Frederik van Zyl Slabbert put it wonderfully, saying, “Even if it is so that some intellects in government crave a ‘Gramscian hegemony’ over the masses, they haven’t got a snowball’s hope in hell. The scope and diversity of civic action simply defies such hegemony.”

In the areas where South Africa was lauded as having pioneered new frontiers in human rights, that is, second and third-generation rights, the record has been mixed. There have certainly been valiant efforts in this regard, mostly through free services (of often indifferent quality), social grants, and housing. There have been a number of prominent court decisions requiring the state to live up to these commitments.

But the harsh reality is that such entitlements demanded the direction of funds and state capacity that might not have been available. The Constitution nodded to this by qualifying socio-economic rights as being subject to available resources. An early example was the 1997 Constitutional Court case, in which Thiagraj Soobramoney sought to access dialysis treatment that he couldn’t personally afford. The court ruled that, among other things, a right to healthcare didn’t in fact grant an unlimited and unqualified right.

The danger of all of this was, as the Institute of Race Relations said at the time of the promulgation of the Constitution, that it risked binding the idea of constitutional governance to that of material benefits. The two should, in fact, have been separate commitments, each recognised as a positive good in itself.

Which brings things back to the current state of pessimism. South Africans are free but frustrated. It’s a frustration borne largely out of the failure of the country to achieve the rapid economic take off that has revolutionised life across middle-income countries over the past generation, but largely eluded South Africa. And it’s a frustration arising from disgracefully deficient governance, as is too often evident by driving through most of the country’s cities and even more so its smaller towns.

This is an unpropitious environment for a culture and governance regime conducive to a culture oriented towards human rights.

Afrobarometer’s polling has long revealed a disturbing undercurrent in popular attitudes: that clear majorities of South Africa’s people would accept an authoritarian political order if it could provide security, employment, and reliable services. This is, of course, something of a straw man question, but it points to the potential for disruptive political appeals that could attempt to upend the country’s order. In fact, with such parties as the Economic Freedom Fighters and the uMkhonto we Sizwe party, such appeals are being made.

Beware of this. Human rights and the constitutional democracy that underpins them is always and inherently a fragile thing. South Africa is the country of the 1994 transition and the 1996 Constitution, but also of the Sharpeville Massacre, state capture, and a rapacious and venal political class. Take nothing for granted.

• Terence Corrigan is project and publications manager at the South African Institute of Race Relations, South Africa’s oldest think tank, which aims to promote individual and societal freedom and prosperity.