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Does South Africa’s Constitution still serve her hard-fought democracy?

Once internationally hailed and locally revered, South Africa’s Constitution is now being looked upon with suspicion by the very people it is meant to serve – the majority.

A democratic system of rights has to incorporate, not only constitutional and general political goals, but also the collective goals that are articulated in struggles for cultural and traditional thinking. This is critical if we are to overcome the disenfranchisement of underprivileged groups, and with it the division of society into social classes. This is far easier said than done.

South Africa’s Constitution is regarded by the educated class as the beacon of hope as it protects not just individual rights, but also the rights of the minorities against majoritarianism. However, it is increasingly being regarded with suspicion, especially those on the societal peripheries.

When you take cognisance of the fact that the courts of law have been at the forefront of protecting poor people’s rights, especially regarding human settlements, it is baffling that the poor should see the Constitution as the document that protects only the rights of the elites.

Sure, it serves as the tool of capitalism in being strident on its protection of personal property for example. But even the interpretation of those property laws is fast approaching the Catholic Church’s social teachings in not regarding the rights as absolute.

However, it is becoming increasingly clear that the attitude of holding the Constitution and the courts in suspicion is wide spread in the townships and rural areas. Law enforcement incompetence has resulted in a perception that criminals are getting away with murder. Added to the prevailing social make-up of our population still being largely the result of our historical circumstances and trust in our Constitution is not shared. From apartheid spatial geography to current economic realities, the system of rights, and the principles of the constitutional state, ring hollow in the ears of those living in the peripheries who don’t see them being transferred to their reality.

Servicing democracy

I am not about to argue that consideration of the collective goals must take precedent in law, or that they must dissolve the structure of the law, or negate the difference between law and politics for that matter. This would unbalance our governance and do more than just risk political overreach. Perish the thought, especially these days when the judicial sphere of our government seems to be the last functioning pillar of our country when it comes to transparency and accountability!

Rather, it is important to see every legal system as the expression of a particular form of life, and not merely a reflection of the universal content of basic rights. And legislative decisions, to gain the confidence of the people, must be understood as actualising the system of democratic rights, not only individual rights. And policy, correctly understood, is an elaboration of that system.

My real question is, as it exists now, is whether our Constitution trumps the collective rights in its protection of liberal individualistic rights? I am not saying ours is liberal constitutional state. This would mean we are what liberals, like John Rawls and Ronald Dworkin, propagate for, which is an ethically neutral legal order that is supposed to assure everyone equal opportunity to pursue his or her own conception of the good. In contrast, we are more communitarians. With the likes of Charles Taylor and Michael Walzer we dispute the ethical neutrality of the law in theory. Thus we have no problem in theory with our constitutional state, if need be, actively advancing specific conceptions of the collective life for the universal good.

Ours is supposed to be a communitarian constitutional state that is not blind even to our cultural differences. Our theory of rights protects the integrity of the individual in the life contexts in which his or her identity is formed. But it does this by espousing, in practice, liberal values above the collective or traditional ones. This last sentence may be where lies our problems. Because liberalism is extremely illiberal against the collective that does not respect liberal values.

Promoting equality

Our Constitution aims, as one of its imperatives and articles, not just at the rule of law and protection of rights, but at equalising the living conditions and at protecting the integrity of members of groups that have been discriminated against. It treats the failure of these recognitions as gross violation. But the civic organisations who pass themselves as promoters of our Constitution are moved more by the failures of government to arrest foreign leaders than by the gross violation of our people’s constitutional rights in the informal human settlement of our cities, for instance.

Equality under the law must grant freedoms of choice and action that can be used differently and thus promote actual equality in life circumstances or positions of power. Freedom must be an actual prerequisite for the equal opportunity. To achieve this it must make use of equally distributed legal competence for all classes, not just the current normative meaning of legal equality which achieves the opposite, whose consequent is rendering justice for sale. The liberal hegemony in our learned class is such that their sympathies are more interested in guarding the values that affect them directly, and tend to be hostile to the people they don’t care to understand or even influence by persuasion. If a person does not want to accept the liberal hegemony they’re simply demonised as backward, or worse.

Safeguarding the private autonomy of citizens with equal rights must go hand in hand with activating their autonomy as citizens with a national collective psyche. Somehow we are not achieving this balance. This is why in practice we are failing with the universalism of basic rights. We are living it only at an abstract level of distinctions, but a levelling of both cultural and social differences is crucial to concretise this. My problem is that our differences are not seen in an increasing context-sensitive way. Hence our constitutional system of rights is not being actualised democratically. This is dangerous.

Only our courts of law seem to be aware of the dangers that will eventually come from the failure of lack of integrating our citizens into authentic national socio-economic activity to ensure their loyalty to not only our common laws, but destiny too. This not only requires that we root the interpretation of our constitutional principles from the perspective of the nation’s historical experience, but to also make sure that our interpretation is ethically neutral and legally sound and just to our collective democratic causes. From a normative point of view, the integrity of the individual legal person cannot be guaranteed without protecting the  shared experiences and life contexts in which the person has been socialised and has formed his or her identity.

The identity of the individual is interwoven with the collective and can be stabilised only in a cultural network that cannot be appropriated as private property any more than the mother tongue itself can be. In this country, the collective identity of the majority is disregarded by the constitutional imperatives that, in practice, couch themselves in liberal values. And the majority senses this; it is becoming very clear and that is clearly very dangerous. SA.

Image: Woody Hibbard

* The opinions expressed here by Spotlight.Africa contributors and editors are their own and not official statements of the Society of Jesus in South Africa or of the Catholic Church unless explicitly stated.