We have ‘destroyed the legitimacy’ of our own Constitution – experts lament South Africans’ unfulfilled rights

Though socioeconomic rights are embedded in the Constitution, many South Africans have lost faith in their power as the government continues to ignore them, attendees heard during the third Constitutional Insights webinar.

Hosted by Daily Maverick associate editor Ferial Haffajee, the webinar featured returning panellists William Gumede, associate professor in the school of Governance at the University of the Witwatersrand, and Geo Quinot, professor of law at Stellenbosch University, who reflected on the difficult journey towards reaching the “visionary rights” of the Constitution almost 30 years after apartheid. 

https://www.youtube.com/watch?v=5B89hI15Ihs

Gumede explained that “socioeconomic rights are very much interlinked to human rights, also the two are integrated”.

The Constitution clearly stated that the government had a duty to respect, protect, promote and fulfil all the rights in the Bill of Rights. The duty to respect the Constitution meant the government should not take away socioeconomic rights or make it difficult for people to exercise their rights. 

Socioeconomic rights gave people power to access certain basic things and services, such as shelter, healthcare, food and social welfare, so they could at least lead a dignified life.

Gumede said the government has no right to deprive a qualifying candidate of a social grant or limit anyone in exercising their rights. 

The severity of neglected socioeconomic challenges in South Africa include the recent “glitch” that stalled September’s grant payout to the elderly, many of whom are entirely financially dependent on social welfare to survive. 

The healthcare system too has underwhelmed as the government repeatedly fails to fulfil its constitutional mandate to provide equitable healthcare services to all South Africans. A number of healthcare facilities lack basic resources such as water, sanitation facilities and proper shelter for waiting patients.

In late August, a fire in a Johannesburg building, which had been a provincial government shelter for women and children, left at least 74 dead. The government’s response to the tragedy was to blame NGOs and foreigners.

Read more in Daily Maverick: City of Johannesburg points finger at NGOs and foreign nationals after deadly fire

Quinot pointed out that although these rights are enshrined in the Constitution, many people have lost faith in their power as the government continues to ignore them.

“Often we get quite pessimistic about the Constitution, get critical of the Constitution because people point to these rights and say, ‘but look, it means nothing. People are still without houses, they are still without water.' And of course that is true,” he said.

Not seeing the role of the Constitution in the country due to negligence and lack of implementation could cause people to resent the Constitution, but “we need to be careful about how we frame that narrative and where we direct our questions and our energy”. 

“Does the problem lie with the actual Constitution containing these rights or is it an implementation problem? I would argue that in that conversation we should be very very careful to simply know our Constitution because I think our Constitution goes a long way to guarantee a lot of things that’s just not done anywhere else in the world, and that’s got meaning, it is important. We should probably look more closely at the lack of implementation under these rights if we want to be critical about conditions on the ground as opposed to criticising the Constitution itself.”

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The Constitution will be 28 years old in 2024, yet many people still endured “unacceptable” living conditions. Quinot suggested that there should be systematic investigations to discover and deal with systemic blockages. 

The lack of accountability by government officials and the practice of selectively implementing the Constitution had also played a big role in the destruction of the legitimacy of the Constitution – all taking place under a president who was one of the drafters of the document. 

Gumede, who is also the independent convenor of the Multi-Party National Convention, describes this as a “heartbreaking sentiment” after 1994.

“When  the ANC came to power it was at the heart of putting the Constitution together and then it became a party state where the party and the state became the same. The ANC’s party constitution became more important than the country’s Constitution and the Constitution has been used selectively… we have really destroyed our Constitution”, said Gumede. DM

Watch more webinars in the series below: