The Constitution further obliges the state to respect, protect, promote and fulfill the rights in the Bill of Rights. As such, the day presents an opportune time to look at 2015 in retrospect, to ask how the state fares in its constitutional obligations towards its citizens.

The achievement of equality remains an elusive goal with South Africa’s Gini coefficient measuring 0.66, up from last year’s 0.596. This is indicative of a highly unequal society, with some reports placing South Africa as one of the most unequal societies in the world. There is legislation such as the Employment Equity Act, which is meant to bring greater equality in the workplace. However, the strict use of workplace quotas in fulfilment of the legislation – particularly within the public service sector – has been challenged in instances where this has led to an absolute bar to employment, or to progression for certain groups falling outside of the Employment Equity Act’s ‘designated groups’.

The crime rate remains at unacceptably high levels, despite South African Police Service (SAPS) statistics showing a decline in violent crime levels compared to the last decade. This affects the extent to which South Africans can exercise other rights and enjoy certain freedoms, such as the freedom and security of the person, as well as the freedom of movement and residence. Violence against children and women, as well as lesbian, gay, bisexual, transsexual and intersex (LGBTI) individuals is also at extremely high levels.

Parliament’s failure to hold the Executive accountable in notable instances means that the state is falling short of the stipulation that the nation’s foundational values require a government that is accountable, responsive and open. The apparent political interference in various bodies such as the National Prosecuting Authority (NPA), the South African Revenue Service (SARS), and the SAPS impedes the ability of these bodies to respond to their constitutional mandate. The poor performance of various parastatals affects the ability of South Africans to enjoy some socio-economic rights.

The drought, said to be South Africa’s worst in decades, affects the right to sufficient food and water. This, against a background of worsening economic conditions for the country. It remains to be seen how other socio-economic rights will be affected. While land reform is a constitutional imperative, an increasing concern is the amount of legislation and policy ostensibly meant for land reform, which in essence threatens the property rights of all South Africans.

South Africa enjoys a relatively free press and South Africans are, in general, able to express their views freely. More children than ever have access to basic education, although concern remains over the quality of such education. The courts, especially the Constitutional Court, continue to strike down legislation failing to meet constitutional muster, as well as any other conduct by the Executive that falls short of the Constitution’s demands. Chapter 9 institutions, including the Public Protector’s Office and to some extent the South African Human Rights Commission (SAHRC), fulfil their mandates of deepening democracy by creating avenues through which South Africans may seek recourse for human rights abuses or state impropriety.

Ultimately, the Bill of Rights remains as the blueprint through which the Constitution’s aspirations for reconciliation, unity in diversity, non-racialism, improved quality of life and the freed potential of every South African can be achieved. 

By Phephelaphi Dube: Legal Officer; Centre for Constitutional Rights