Picture: GALLO IMAGES/DAILY SUN/THEMBA MAKOFANE
Picture: GALLO IMAGES/DAILY SUN/THEMBA MAKOFANE

It is perhaps a happy accident that human rights month 2021 coincides with the Constitutional Court’s hearing of the Zondo commission’s application for Jacob Zuma to be found guilty of contempt.

It is no accident that the Defend Our Democracy campaign — which has the support of a broad range of stakeholders, including the Kathrada and Tutu foundations, Universities SA and Trevor Manuel — should have been launched on March 18 and advance Zuma as its chief exhibit of constitutional vandalism.

In its 13-page statement read at the launch by Sheila Sisulu, Defend Our Democracy dubs Zuma’s non-compliance with a Constitutional Court order to attend the Zondo commission as “astonishing defiance” that “not only violates the law but assails the constitution itself”. It further reminds us that Zuma has “launched a malicious attack on the judiciary itself, particularly on the Constitutional Court, the cornerstone of our constitution”.

The Defend Our Democracy statement lists “unrestrained, large-scale looting”, the use of ill-gotten gains to “stall the prosecution of the perpetrators”, and “disparate parties directly implicated in ... state capture ... that have been enlisted to amplify [Zuma’s] defiance of the Constitutional Court”, as instances of how “this powerful cartel (is) undermining good governance”.

That Zuma’s court date coincides with human rights month and happens a mere four days after Human Rights Day itself, insists that any and every discussion of human rights in SA reverts to the constitution. But that in itself might be too trite an account, as evidenced when the Defend Our Democracy statement calls on “all people of goodwill to vigorously oppose this threat to our democracy”.

“Vigorously oppose” is a call to activism. It enjoins the responsibility for upholding constitutional rights on an informed and active citizenry. The cold truth is that we need to be as energetic as those who are insidiously undermining the founding vision of SA. As all the speeches and declarations are made we acknowledge again that “words matter”, but are insufficient.

This year is the 25th anniversary of our constitution. It is worthwhile remembering this human rights month that Nelson Mandela signed the constitution into law at Sharpeville, site of the massacre of 69 people, wounding of some 180, including 50 women and children. Given that the theme for this year’s human rights month is gender-based violence, the link between the constitution’s anniversary and the protection of all rights, but especially those of women and children, is germane.

It is also worth remembering that it was an ANC splinter group, the PAC led by Robert Sobukwe, that organised the anti-pass laws protest on March 21 1960. The protest was based on a dream: “We have sworn that we are leading [the African people] not to death but to life abundant.” It showed that dreams require activism to be realised, and that activism — even activism committed, as Sobukwe said, to “absolute non-violence” — is dangerous.  

‘Fake law’

The Defend Our Democracy statement places activism against an implicit quietism, defeatism, cynicism. The latter grow by the day, for understandable reasons. Zuma’s resort to what University of Cape Town constitutional law profession Pierre de Vos has called “fake law”; his specious attempt to align his own delinquency with Robert Sobukwe, these are “merely” dramatic instances of a growing and dangerous contempt for the law in SA.

The reasons for this contempt are deep and obvious. A particularly insidious aspect is the surface parallel between then and now and a feature of apartheid SA. We speak of “a postapartheid state”. This language proposes a decisive break with the past and is a thesis endorsed by the constitution itself when it claims it is “a historic bridge between the past of a deeply divided society ... and a future founded on the recognition of human rights, democracy and peaceful co-existence”.

Tragically, a dispiriting connection between then and now is a renewed contempt for the law that shows a reversion to a national psyche the constitution itself had hoped to heal.

In 2007 Mark Gevisser published The Dream Deferred, his long-deferred tome on Thabo Mbeki. Gevisser’s title is an allusion to a famous poem by Langston Hughes. There Hughes wonders: “What happens to a dream deferred? He continues: “Does it dry up/Like a raisin in the sun?/Or fester like a sore — /And then run?”

Our dream is not deferred but defiled. Increasing poverty, increasing racial and class polarisation. Crime statistics released just a month ago provide no comfort: the murder rate increased by 6.6% in three months’ reporting, and there was a 5% increase in sexual offences. (The latter are recorded cases and much less reliable than the murder figures). By any measurement that matters our society is more “deeply divided” than in 1996. Our society is more brutal and vulgar than ever.

Dates are markers about which national narratives cohere. Every informed South African should have March 21 1960 etched in their memory cells. Likewise, December 10 1996, the day Mandela signed the constitution into law. (The date is more resonant still for coinciding with international human rights day).

But another gruesome narrative emerges from “postapartheid” dates: April 13 2011; August 16 2012; April 10 2020; August 26 2020. The occasions tabulated by these dates — a brief, notorious number to be looked up if already forgotten or repressed — show the sore running. They too are burnt into the national cortex.

Sustainability

“Sustainability” is a key word in our national discourse right now. Defile the dream by deferring it and we erode the deference the dream requires for sustainability. Yet, in being a (would-be) revered and an aspirational document, our constitution combines a potentially lethal deferral with deference. It stands as a model for social and political possibility. It strives to be an interpretation of life that makes sense to the whole culture.

“Sustainability” is most often used in relation to economic matters. That socioeconomic rights are enshrined in the constitution points to the inevitable interdependence between the economy and the constitution’s dream, between what Thomas Hardy called “the mean bread and cheese question”, and our national ideals.

It is trite to point out that health and education spend have deteriorated in real terms. It is banal to say that under-resourcing of education and health have worsened the current crises in these sectors. Already in June 2019 the Institute for Economic Justice wrote an open letter to Zweli Mkhize and Tito Mboweni pointing out that “austerity budgets” meant that health objectives “cannot be met under the current inadequate and inefficient health resourcing — both financial and human.”

On March 19 2021 an open letter signed by more than 280 individuals and organisations was sent to the standing committee on appropriations, arguing that parliament’s approval of the 2021 budget “will result in the widespread violation of many of the rights enshrined in the constitution”. They argue that budget cuts “break the constitution’s promise to “improve the quality of life for all”.

Recognising that the achievement of socioeconomic rights is “progressive”, and citing the UN committee on economic, social and cultural rights — to which SA is a signatory — requires that cuts in socioeconomic spend must be “fully justif(ied)”, the signatories claim the 2021 budget “is unconstitutional”.

In September 2020 auditor-general Kimi Makwetu pointed to “frightening findings” and the “amplification” of corruption in the (mis)use of SA’s R500bn Covid relief fund, a sum that equals 10% of GDP. We have heard of misappropriation of funds meant for schoolchildren’s meals. To continue the list is simply dispiriting.

Zuma’s antics are unconstitutional. The current budget is unconstitutional. The widespread corruption daily exposed at the Zondo commission is unconstitutional. Do we recall the exuberance and optimism of 1994, or December 1996?

“Dreaming forward” — Ernst Bloch’s term — is supplanted by demoralisation, a word that links despondency and decadence. Our demoralisation has led a sizeable majority to still vote for a party that has impoverished us economically, and worse, violated our dreams. At bottom, rather than bottoming on constitutional principles, too many of us have colluded with a party that has impoverished us in many ways.

We call, rightly, for government accountability. This has become another form of scapegoating. Strategic activism might start not with open letters and marches — however well-intentioned — but with a cold appraisal of our own accountability. The erosion of our rights is not the fault of government, or “white monopoly capital”, or “big Pharma”.

Jonathan Swift asserted that “laws are like cobwebs, which may catch small flies, but let wasps and hornets break through”. We witness this daily. As we reflect once more on human rights in SA, let us acknowledge a root, brute fact: none of us is innocent, and too many have joined the wasps and hornets.

• Trengove-Jones is a retired Wits University lecturer.

Would you like to comment on this article or view other readers' comments?
Register (it’s quick and free) or sign in now.

Speech Bubbles

Please read our Comment Policy before commenting.