ANC failed to implement land section in the Bill of Rights

SOUTH Africa is witnessing another wave of disillusionment with the constitutional arrangement that followed the end of apartheid in 1994. As the country advances towards the third decade of democracy the sentiment is that the constitution is an obstacle to meaningful economic transformation.

It’s criticised for putting a brake on much needed wealth redistribution, following centuries of colonialism and apartheid oppression of the black majority. President Jacob Zuma has alluded to the need to amend the constitution to enable accelerated radical land reform.

Why, indeed, has the country not made the social and economic advances promised in the negotiated settlement and incorporated in the 1996 constitution?

South Africa’s constitution is admired globally. It incorporates hard fought for political and civil rights, and a generous range of social and economic rights that can be enforced by the courts. Why then do so many South Africans, mostly black, still live amid widespread poverty?

With a constitution locating equality and dignity as its pre-eminent principle, why do so many women and children still suffer from such disturbing levels of violence? Why is unemployment so alarmingly high in the face of vivid affluence and consumerism?

These questions go to the heart of the South African dilemma, namely, persistent economic inequalities and poverty. Some even perceive this as the failure of the South African constitutional project.

But has the constitutional project failed? And is the country’s constitution the problem? I believe not. The provisions, if properly implemented and enforced, have the capacity to change the lives of the majority of South Africans.

There are many reasons for the country’s inability to realise the rights set out in the constitution. They include a lack of political will on the part of all spheres of government (national, provincial, and local), bureaucratic indifference or incompetence, corruption and mismanagement.

The reasons also relate to the failure of government to implement court decisions. But a narrow focus on only law and the courts will yield only limited results and constrict the transformative possibilities of the constitution.

The ability of the constitution to change the lives of the majority of South Africans is particularly true if enforcement involves a broad spectrum of societal actors. This includes government, the corporate community and civil society, the media and the various professions, the trade union movement and religious bodies.

The range of social and economic rights in the constitution include the right of access to education, health care, food, water, social security, a clean environment and housing. Many have been litigated, often with judgments in favour of the applicants. But often the judgments haven’t been properly implemented and enforced.

The most successful cases have been those where the plaintiffs have worked closely with civil society advocates to ensure that the court’s decision is implemented. A n example is the Treatment Action Campaign case that forced the government to roll out anti-retrovirals to HIV-positive pregnant women in public hospitals.

Arguably the land question is the most pertinent in South Africa. Not surprisingly the section of the constitution that’s viewed as the greatest impediment to “radical” economic transformation is Section 25 – the so-called property section. The right to property ownership is often seen as protecting the interests of white property owners over poor black South Africans. Is this fair?

I don’t believe so. The protection of the right to property should protect everyone in a market economy. But these protections don’t preclude the possibility of addressing the colonial and apartheid legacy of land theft from black South Africans.

That successive ANC governments have clearly not implemented the provisions of Section 25 shows political negligence, a betrayal of its own policies and a failure of governance.

It’s not the constitution’s failure to deliver “radical economic” transformation, but a lacklustre government that has forgotten its promises – first adopted in the Freedom Charter and then again in the constitution. – The Conversation Penelope Andrews is dean of law and professor, University of Cape Town