It should concern us that many political leaders who have sworn to uphold the Constitution neither understand nor believe in some of its core tenets.
One of these that seems to be neither understood nor embraced by certain political leaders is social justice.
It is my considered view that politicians who say race should not matter in policy design are constitutionally dissonant. The problem is not race-conscious policies. The problem is gratuitously unfair exclusion of those deemed to be historically advantaged, compounded by corruption, cronyism and nepotism.
The preamble to the Constitution states: “We, the people of South Africa, recognise the injustices of our past; honour those who suffered for justice and freedom in our land; respect those who have worked to build and develop our country; and believe that South Africa belongs to all who live in it, united in our diversity. We therefore … adopt this Constitution as the supreme law of the republic so as to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights …”
What is social justice?
On World Social Justice Day this year the UN stated that: “Social justice is an underlying principle for peaceful and prosperous coexistence within and among nations. We uphold the principles of social justice when we promote gender equality or the rights of indigenous peoples and migrants. We advance social justice when we remove barriers that people face because of gender, age, race, ethnicity, religion, culture or disability.”
Social justice is about justice between groups in society and between societies. Social injustice occurs when a group or groups are systematically excluded from certain opportunities, resources and privileges and when the distribution of burdens is unjustly and unfairly skewed in favour of one group. It is worth noting that the groups exceed the UN quote and include those unjustly and unfairly excluded from opportunity because of sexual orientation, gender nonconformity, class, nationality and other bigoted views regarding valuing and devaluing humanity.
It is social injustice when one group finds it unduly harder than others to access life opportunities, such as justice services, education, acquisition or retention of assets such as land, to establish, grow and sustain a commercial or social enterprise. Most of the injustice in the world, and certainly in South Africa, comes from accumulated advantages enjoyed by a group historically favoured by unjust laws and policies and accumulated social disadvantage by a group historically subjected to unjust socioeconomic exclusion through such laws and policies.
In South Africa accumulated advantage principally applies to white people and accumulated disadvantage applies to black people, defined generically to include Africans, coloureds and Indians/Asians; women; and persons with disabilities. Social justice requires some positive or remedial actions by the state and private actors to balance the scale of justice and opportunity. That is called levelling the playing field. These are the kinds of measures envisaged in the Constitution and Chapter 5 of the Promotion of Equality and Prevention of Unfair Discrimination Act. Astonishingly, this part of the act is yet to be implemented, two decades into its promulgation.
Social injustice is perpetrated when one-size-fits-all and impact-unconscious policies disadvantage those whose lives are divergent from the paradigm informing such policies. In this regard, persons with disabilities, women, older persons, children, young people and rural communities tend to be disadvantaged. Consider a municipal by-law that says no dogs are allowed in public meetings. Visually impaired people as a group who rely on guide dogs would be disparately affected by such policy although, on the face of it, it applies to all in equal measure. The complexities of the effect of similar treatment on substantive or social justice are particularly pronounced when it comes to perpetuating the ugly shadow of the unjust apartheid and colonial policies and laws.
What is perplexing is that the politicians clamouring for race-blind policies are state functionaries in a country whose contours of inequality in virtually every facet of life are racial in character, principally as a result of past legalised injustices. To correct imbalances they propose education and jobs. How does education and employment alone correct the imbalances in the highly racially skewed asset ownership landscape, access to capital and markets to start, own and sustain businesses; historical race and gender imbalances in land redistribution; and social capital disparities?
Some say land ownership is inconsequential, that fixation with land redistribution and restitution is misplaced. This is baffling as they are the first to warn if you touch land improperly you are not only messing with a sacrosanct fundamental right but repelling investors. It also ignores that land and related immovable property constitute key collateral that financial institutions require for finance needed to start, grow and sustain businesses and social enterprises.
Underpinning the UN’s Social Justice Day call to leave no one behind is the disaggregation of humanity into groups to account for all. If we abandon race as a policy consideration, how do we determine who remains left behind? Is it possible that some leaders believe everyone is where they belong, that the current social pyramid where black people are reservoirs of labour and consumers is natural? Wilhelm Verwoerd, in his book Verwoed, confesses that is the paradigm his upbringing gave him until he awoke to the truth of the equal worth of all human beings and concomitant equal entitlement to socioeconomic inclusion in all aspects of society. In her book, Like Family, Ena Jansen quotes the late Marike de Klerk as reflecting on having grown up thinking that black women belonged to society’s lowest rung as that is how she grew up seeing them.
Interestingly, those who say race and identity shouldn’t matter call themselves liberals. My view is they are not liberals. They are libertarians or neoliberals, an anachronistic group left behind in the evolution of liberalism. Modern liberalism, which is generally associated with the philosophy of John Stuart Mill, is more of a foundational belief for parties such as the Democrats in the US while libertarianism is associated with conservative parties. Liberals and libertarians are both historically rooted in the belief of the notion of limited government in the interest of optimal personal liberty unconstrained by too much government control.
Paul Starr states that: “Liberalism consists of principles not only for a just society but also for the design of a state capable of sustaining that society in a world that is far from ideal.” This is the philosophical underpinning of our Constitution hence its preamble’s reference laying the foundation for freeing the potential and improving the quality of life of every citizen.
The patience of the left behind is running thin while some political leaders dither. The consequences may be dire for democracy, the rule of law, social cohesion and, ultimately, shared destiny. Adam Smith, who died about 70 years before the end of US slavery said: “Justice … is the main pillar that upholds the whole edifice. If it is removed, the great, the immense fabric of human society … must in a moment crumble into atoms.”
In Smith’s view, the commonwealth that a community represents, had to be just to all its members or face disintegration. Isn’t it paradoxical that his economic lens rooted in archetypal patriarchy and the commodification of blackpeople through slavery appears to influence many of the anachronistic views on contemporary justice and inclusion?
I take comfort in emerging glimmers of shift moments, particularly in business. At global level we are seeing leaders such as Just Capital founder Paul Tudor Jones and former Unilever chief executive Paul Polman who believe that businesses have the capacity and responsibility for the shifts in social justice and climate crisis that can alter the course of history and save humanity from itself. Polman recently affirmed at this year’s One Young World Summit in London that the greatest threats of our time are the climate crisis and social justice.
However, isn’t it time we held those who have sworn to uphold the Constitution to honour their oath of office, be they in the executive or other organs of state? Responsibility includes the social justice foundations of our democracy and the need for urgent action to deliver on this promise. Even if we don’t deliver to all immediately, visible commitment demonstrating urgency, backed by action in the right direction, should engender hope and restore some trust thus, buying us time.
Thuli Madonsela is the Law Faculty Trust Chair for Social Justice at Stellenbosch University and founder of the Thuma Foundation.
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