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How South Africans can use their constitution to fight for social justice

AIDS activists protest outside South Africa’s parliament in Cape Town. Reuters

Seasoned South African social rights activist Mark Heywood is of the view that the country’s constitution can be championed by any citizen, in the courts if need be, to achieve almost any objective for social justice.

Heywood sets out his argument in an absorbing chapter – Seize the power! The Role of the constitution in uniting a struggle for social justice in South Africa – in a recently released book, Capitalism’s Crises: Class struggles in South Africa and the world, edited by leading left academic Vishwas Satgar.

The seasoned social rights activist challenges a number of criticisms against the South African constitution. The main one, articulated most vociferously by the left, is that it perpetuates inequality by protecting private property rights.

Wits University Press

But Heywood suggests that the constitution provides South Africans with more rights and entitlements than they may be aware of. And, with the right kind of support from an engaged citizenry, people can have their legitimate rights defended up to the highest court of the land.

In other words, he prompts South Africans to use their power in numbers to protest (constitutionally), engage government and where necessary use the courts to uphold their rights.

Lessons from the Treatment Action Campaign

As a case study, Heywood discusses the unlimited potential of civil society organisations, such as the Treatment Action Campaign (TAC) to be one such champion of the rights of vulnerable citizens. It makes for a telling example.

The TAC, of which Heywood was a founding leader, had remarkable success in placing considerable pressure on the then-government of President Thabo Mbeki to abandon its reluctance to provide lifesaving HIV/AIDS medication to pregnant women infecting their infants.

The state buckled as a result of sustained legal pressure by the TAC. Antiretroviral medication was eventually rolled out across the country. This provision resulted in the saving of an estimated ten million South African lives, according to Heywood.

The TAC case shows what a plugged in democratic civil society can achieve. Do we need more organisations like this? Can its success be replicated by other NGOs in the fight for social justice in South Africa?

Finally, Heywood correctly advises that the South African constitution offers citizens ammunition for constitutional protest and court-based challenges to achieve real socioeconomic transformation. My impulse is to agree with that position.

More questions than answers

But I was left with more questions than answers:

  • The constitution governs private power and mandates economic transformation. How can this be enforced faster amid growing unhappiness with the slow pace of transformation?

  • The constitution requires the government to respect, protect and promote socioeconomic rights. Who is going to take local governments (for instance) to court to force them to provide basic services?

  • The constitution demands accountability from public officials. Who is supposed to enforce this? Surely, it cannot be left only to the Public Protector Thuli Madonsela?

  • The constitution describes “basic values and principles of governance”. There are a significant amount of ethical goals described here that public administration in South Africa needs to adhere to.

Issues like the Nkandla saga, over the inappropriate use of public money for upgrades to President Jacob Zuma’s private residence, are in contravention of these ideals. Nkandla has been successfully challenged, but what about the much publicised Arms Deal scandal and other examples of diabolical government corruption that have been easily quashed?

We would first need average South African citizens to understand their rights and responsibilities to be able to effectively fight for social justice. If not, the author’s argument risks being discredited as a novel idea and subsequently deeply removed from the realities of class inequality, ignorance and destitution.

Bridging the divide between South Africans and the constitution would need to happen rapidly if democracy is to survive the onslaught for social justice at any cost.

Capitalism’s Crises: Class Struggles in South Africa and the world is published by Wits University Press.

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