The prevalence of civic activism is transcending the need to demand accountability from the state
As a seemingly unprecedented spate of gender-based violence against women and children overwhelmed the nation over the past few weeks, many have been asking how these acts are possible in a country with a globally acclaimed Constitution that puts social justice, human rights and freedoms at the centre of society and state action.
The truth is that, no matter how great the law may be, it cannot make us treat each other with the care, compassion and human solidarity that’s at the core of the African value of ubuntu.
Although it is transformational in many ways, particularly regarding the laying of a foundation for social justice, fundamental human rights and freedoms, ethical governance, the rule of law and peaceful coexistence, none can deny that the impact of our Constitution falls short of the potency of its words.
Incidentally, the Constitutional Court declared that the value of ubuntu is one of our constitutionally entrenched foundational values.
The laws that have sought to give meaning to the Constitution have also not made our society more caring.
This is despite a formidable statutory framework that includes laws seeking to prevent violence incorporate sexual and gender-based violence, and we have groundbreaking court jurisprudence that has pronounced that state responsibility includes prevention.
One of the ground-breaking cases in this regard is Carmichele v Minister of Safety and Security and Another, which innovatively pronounced that our Constitution, read with international law, imposes a duty on government to prevent violence against women.
The Carmichele case, which has implications regarding the rape and murder of Uyinene Mrwetyana, showed that freeing a violent criminal who attacked a woman was regarded as dereliction of duty constituting a human rights violation.
We also have high levels of generic violence, including gang violence in parts of the country, particularly areas historically reserved for those classified as coloured.
Violence with an Afrophobic and xenophobic twist also resurfaced, allegedly in response to the murder of a taxi driver who tried to stop the sale of drugs to schoolchildren.
After 25 years of democracy, we have been shamed by the World Bank as being the most unequal society in the world.
Stats SA says poverty is at 55.5%, with 1% of white people and 64.2% of black people of African descent being poor.
Asset distribution remains skewed in terms of race and gender as just a handful own the lion’s share of the country’s assets, including land.
Health disparities are equally enormous, and life expectancy also has a racial dimension.
In its preamble, the Constitution promises to lay the foundation for healing the divisions of the past and establish a democratic society based on social justice.
It further promises to improve the life of every citizen and free the potential of each person.
It announces human dignity, the achievement of equality and the advancement of human rights and freedoms as the country’s foundational values.
It specifies the basic human rights and freedoms that we are all entitled to, and declares in section 237 that “all constitutional obligations must be performed diligently and without delay”.
Persistent gender-based violence and scores of other human rights violations point to a gaping divide between the constitutional promise and the reality for most who live here.
The problem is not simply the fact that there are still disparities along historical apartheid and patriarchal lines; the problem is that things are not getting better, at least not discernibly.
However, I must say that, although this year has had many gloomy moments, a number of recent events have given me hope that we will turn the corner and create a society founded on mutual care and human solidarity.
As we climbed towards the summit of Kilimanjaro last month, I experienced and witnessed depths of human solidarity and generosity I had forgotten existed.
As a child growing up between Soweto and a small village in eSwatini, I was raised with the idea that it takes a village to raise a child.
Our lives overflowed with experiences of kindness and generosity from neighbours.
In Soweto, when my mother was arrested for trading without a licence, leaving me with a newborn baby, the entire neighbourhood showed up to help look after us.
As we journeyed on Kilimanjaro, the experiences overflowed with similar boundless generosity and care.
The expedition itself was inspired by human solidarity – it was about inspiring the nation to donate sanitary pads to keep girls in school.
Climbing for dignity and social justice, as we called it, was about ensuring that girls from disadvantaged families were not forced to leave school due to a lack of access to sanitary items during menstruation.
I recall an incident on the mountain when a request for Diamox, a drug said to diminish the risk of altitude sickness, elicited half a dozen or so offers from fellow mountaineers.
This was a daily occurrence – every time you asked for a hand, you got an arm.
Sometimes you didn’t even have to ask as an offer would be made purely because someone sensed your need.
This year’s Social Justice Summit was another moment that renewed my hope regarding our commitment to ubuntu and related harmonious coexistence.
The Social Justice M-Plan was endorsed without reservation.
A fourth key result area requiring leadership at all levels of society, incorporating societal contribution to building a capable state, was added.
The first heart-warming surprise during the summit was an agreement between Professor Ben Turok, known for his left-wing leanings, and former president FW de Klerk about the ferocious impact of apartheid and its legacy.
Then there was an agreement between fiery Wits University vice-chancellor Adam Habib and former Western Cape premier Helen Zille about the look and feel of the South Africa we want.
Zille had said that South Africa should reflect inclusiveness at all levels and all areas of life, and that, to achieve such, the legacy of apartheid needed to be dismantled.
A third moment of hope came from two constitutional dialogues organised by students at Fort Hare and Rhodes universities.
There were no scenes of shouting and labelling like the ones we have come to expect in Parliament.
I was struck by the quality of sociolegal analysis and rational discourse.
I was also impressed by student concerns being beyond justice for themselves, or justice as “just us”.
The themes were transformative constitutionalism and the impact of political party funding on democracy.
The deliberations transcended matters directly impacting on students, and mostly showed solidarity with groups and communities that are left behind.
I was struck by an emerging sense of human solidarity that embraces diversity. At the core of these moments was transcending the devaluing of those who are not like us.
I got a sense that we were turning the corner.
I sense an emerging trend towards engaged citizenship with a global citizenship twist.
I also sense emerging civic activism that transcends demanding accountability from the state, with citizens taking action to fix what they can while exercising social accountability to ensure government operates constitutionally.
The hope-inspiring moments also suggest the emergence of transformative constitutionalism beyond the courts.
If I’m correct, we have reason to hope that tomorrow will be better than today, and that a caring society based on human solidarity will be a reality sooner than we think.
- Madonsela is a professor and Law Faculty Trust chair in social justice at Stellenbosch University, and founder of the Thuma Foundation and the Social Justice M-Plan
With so much bad news surfacing every day, do you still feel hopeful about SA’s future?
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