ANC failed to im­ple­ment land sec­tion in the Bill of Rights

The Star Early Edition - - NEWS - PENELOPE AN­DREWS

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

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