2014 marks 20 years since South Africa’s first democratic elections and a constitutional era underpinned by the values of human dignity, the achievement of equality and the advancement of human rights and freedoms; non-racialism and non-sexism; supremacy of the Constitution and the rule of law; and a multi-party democracy resulting in government that is accountable, responsive and transparent. As a result, South Africa is without doubt a better place to call home.
However, even though it is a functioning multi-party democracy, the growing failure within South Africa to fully appreciate and adhere to all of the aforementioned constitutional values – especially those of accountability, responsiveness and openness, but also non-racialism and non-sexism – is having a direct impact on the realisation of human rights and freedoms. These fundamental rights – as with constitutional values – are interrelated, interdependent and indivisible, meaning that the failure to adhere to one will affect realisation of other rights.
Nonetheless, South Africans enjoy most of the fundamental rights enshrined in the Bill of Rights in one way or another. This includes a fairly wide enjoyment of most political and civil rights, although the same cannot be said about the realisation of socio-economic rights. As a result, inequality in its many manifestations – including persisting poverty, unemployment and access to quality basic education, health services, water and sanitation services – remains a challenge even after 20 years. More communities have access to housing, electricity and water than ever before, although the inability to provide these services in a sustainable manner to all people – especially at local government level – remains the primary cause for ongoing service delivery protests across the country. Similarly, there are indeed more children enrolled in schools than ever before. However, the quality of basic education offered in the majority of South African schools continues to be low.
An apparent disregard for human rights and lack of a human rights culture within the South African Police Service (SAPS) is an increasing concern, which directly and negatively impacts on various rights in the Bill of Rights. The number of well-reported incidents of alleged police brutality – including acts of assault and torture – appears to be constant, if not increasing. In this regard, the realisation of a number of human rights in the Bill of Rights are not only dependent on the SAPS operating as a professional and effective service, but operating within the parameters of the Constitution and its Bill of Rights. Also, there is the perception that the right to equality before the law is being subverted by alleged improper interference by the National Executive in the National Prosecuting Authority (NPA), featured in a number of well-reported cases.
The lack of accountability, responsiveness and transparency in relation to governance in general is of great concern. The impact of these shortcomings on public administration and service delivery – whether due to unconstitutional conduct, corruption, wasteful expenditure or incompetence – remains one of the greatest threats to human rights and freedoms and especially the realisation of socio-economic rights.
Fortunately, the supremacy of the Constitution and its Bill of Rights are protected by independent courts, which frequently strike down unconstitutional legislation and executive action. Also, some state institutions established to support constitutional democracy – especially the Public Protector and the Human Rights Commission – are playing an important role in advancing human rights and identifying unconstitutional behaviour across the spectrum. The latter institutions are unfortunately often publicly criticised and decried by the national executive and Parliament, seriously undermining the integrity of these constitutional entities.
In turn, Parliament has, to a large extent, not lived up to its constitutional role of holding the national executive accountable for its actions and inactions. Instead of fulfilling its proper oversight role, it often appears as if Parliament is intent on protecting the national executive from criticism and on stifling debate on matters of importance to the electorate.
Encouragingly, the media are free and outspoken and civil society continues to be vociferous and engaged in the promotion of constitutional values and human rights.
Race continues to be a major dividing factor and continues to determine access to employment, as well as the enjoyment of social, educational and economic rights. In this regard, the Constitution requires restorative justice aimed at the achievement of equality. However, ironically, our efforts to promote equality sometimes have had a negative impact on South Africans – regardless of race. This is particularly so where the foundational value of non-racialism is disregarded and where the appointment of unqualified people in practice has the effect of limiting access to employment, quality education and other services.
The recently gazetted Draft Employment Equity Regulations are a case in point. These regulations, published in terms of the Employment Equity Act require employers to consider only national demographics in respect of the promotion and appointment of certain categories of senior personnel, almost completely disregarding the reality of provincial demographics. Moreover, government policies are increasingly race-based and the tone of the national and political discourse has become disturbingly and aggressively racial in nature.
The judiciary continues to play its proper role in the administration of justice. Although the lower courts have been criticised for undue delays in deciding cases and settling matters, the higher courts continue to play a constructive role. They have emphasised the importance of judicial review of executive authority, not just in terms of the Promotion of Administrative Justice Act but also as an incidence of the rule of law.
The Office of the Chief Justice has been established as a separate entity from the Department of Justice and Constitutional Development, arguably enhancing the independence of the judiciary. The judiciary in general and especially the Constitutional Court are expected to continue to strike down legislation and executive acts not meeting constitutional muster. Nevertheless, concern remains over the future independence of the judiciary in the wake of criticism of the courts by the government, especially in relation to judicial review of government actions and decisions. In addition, the Legal Practice Bill as adopted will have a negative impact on the independence of the legal profession and could consequently undermine the rule of law.
Unless effectively addressed by way of the new Green Paper on Policing, as well as legislation to that effect, the lack of an apparent human rights culture within the SAPS will increase the likelihood of more incidents of police brutality.
Gender equality and violence against women and children remain a great concern. The government’s inability to effectively prevent, suppress and prosecute these crimes is exacerbated by a patriarchal society and very high rate of violence and sexual offences in general.
Government has announced its intention of accelerating the land reform process but has promised to deal with it within the framework of the Constitution. As such, land and property rights will continue to be in focus in light of the Restitution of Land Rights Amendment Bill, which will reopen the land claims process. The Properly Valuation Bill does away with the “willing-buyer, willing-seller” requirement for land reform purposes. It also attempts to preclude the courts from involvement in the valuation process once land is identified for land reform purposes. Other laws such as the Draft Expropriation Bill, the Private Security Industry Regulation Amendment Bill, the Infrastructure Development Bill, and the Promotion and Protection of Investment Bill all further have the potential to weaken property rights. The latter Bill is intended to protect property rights following the unilateral termination by South Africa of a number of bilateral treaties. It is problematic because it raises the possibility of expropriation without compensation of any property in South Africa.
The number of service delivery protests – some characterised by violence – reflects the growing frustration at the lack of access to basic services, the slow pace of housing delivery under the Reconstruction and Development Programme (RDP) and high unemployment rates. This is likely to continue and even increase.
Effective implementation of the National Development Plan (NDP) will have a positive effect on the realisation of a number of human rights. The NDP, however, does not enjoy the support of all within the ruling party and its alliance partners and may encounter great difficulty in being implemented in full.
Some of the factors that can be expected to affect constitutional rights in 2014 include:
- The ability of Parliament to ensure effective oversight over the national executive – thus ensuring accountability, responsiveness and openness;
- The effectiveness, independence and integrity of Chapter 9 institutions – especially the Public Protector, the Human Rights Commission, the Independent Electoral Commission and the Auditor-General;
- The influence of public participation in democratic processes – including the 2014 elections and legislative processes;
- The impact of an increasingly racialised political and national discourse on national reconciliation, social cohesion and levels of tolerance;
- The ability of the government to effectively address socio-economic rights such as health, education and housing;
- The future behaviour of the Judicial Services Commission (JSC) and its ability to attract and propose fit, proper and impartial candidates for the judiciary;
- The impact of a failing basic education system on the achievement of equality in the long run;
- The impact of the Legal Practice Bill on the independence of the legal profession and consequently the judiciary;
- The impact of the Protection of State Information Bill and the Higher Education and Training Laws Amendment Act on freedom of expression and academic freedom respectively;
- Growing incidents of police brutality in the absence of firm leadership and the findings of the Marikana Commission of Inquiry into the Marikana-shootings;
- Developments relating to the independence – or lack of independence – of the NPA.
- The impact of new legislation and policies potentially weakening property rights;
- Growing unease in key sectors of the economy such as agriculture and mining, given the prevalence of violent strikes and uncertain property rights;
- The impact of continued cadre deployment, resulting in ineffective public administration within the public service, organs of state and public enterprises, rendering them unable to deliver on their mandates, including the provision of sufficient energy and clean water; and
- The impact of South Africa’s high, but falling, murder rate and prevalence of HIV/AIDS on the right to life.
We have once again awarded the following grades for human rights in this year’s report card: A = Excellent; B = Good; C = Average; D = Poor; and E = Very Poor. At the same time, the +, = and – signs are used to indicate whether things are getting better, staying the same or deteriorating. We have also included last year’s grade for comparison.