Human Rights Day in South Africa not only commemorates the massacre of peaceful protesters against pass laws in Sharpeville in 1960, but also celebrates the human rights now available to all in the post-apartheid constitutional order. The duty of the state to respect, protect, promote and fulfil the rights guaranteed to all, is taken very seriously by our independent and impartial courts. Unfortunately, this duty is taken less seriously by our government.
The harsh truth is that insufficient resources are available to deliver on the obligations to promote and fulfil the expensive socio-economic rights that are included in the Bill of Rights. The shortage of resources is not due to the poverty of the state. It is due to the diversion of public resources and the nation’s wealth, to the pockets of the corrupt, the kleptocrats and those involved in the patronage networks that have mushroomed since the liberation from apartheid.
Too many politicians and civil servants have entered public service for the purpose of self-enrichment rather than to help with the national objective of delivering on the human rights obligations guaranteed to all. This does not only apply to those rights that, by their very nature, are required to be progressively realised. Housing, access to healthcare, social security and tertiary education are among these rights. However, access to basic education has been claimable in full since day one of the new dispensation.
The president announced at the 2022 state opening of parliament that there currently is a shortage of 2 500 schools in our country. He put off introducing a Basic Income Grant (BIG), pleading lack of means to do so, and wrung his hands when he raised the scourge of corruption in his state of the nation address. He put off addressing corruption until four months after the delivery of the final report of the State capture commission.
The loot of State capture is estimated at R1.5-trillion. A great deal of public money has been diverted to the pockets of the corrupt in business, in State procurement and in positions of political power, whether in elected office or SOEs. No proper steps have been taken to freeze and ultimately forfeit this loot to the State. The amount stolen could fund the BIG. It could be used to build the 2 500 schools and improve access to housing and proper healthcare to those who are living in informal settlements far from clinics and hospitals.
The failure to rake back the loot of State capture is retarding the realisation of a culture of human rights in SA. Instead, we have a culture of entitlement. The “it’s our turn to eat” motto of the likes of Dudu Myeni. The sentiment that, “I did not join the struggle to be poor,” first uttered by Lulama Smuts Ngonyama, now ambassador to Japan, is shared by many of the kleptocrats who populate the corridors of power in SA.
The rot runs deeper. Delivering human rights involves a high standard of delivery of services that enable citizens to enjoy their human rights. No water in the taps, an intermittent electricity supply, rivers of sewerage in the streets, rampant gender based violence, inefficient police and prosecutors – all these well-known features of SA life combine to thwart the enjoyment of human rights, many of which were deliverable as from day one of the new dispensation.
The Constitution envisages and requires an ethical public administration that behaves accountably as it uses the resources of the state effectively and efficiently. The ANC regards the deployment of its cadres, loyal to the tenets of its national democratic revolution, as the means of effecting service delivery. Cadre deployment is a major cause of the State capture phenomenon. A country of 60-million people cannot reasonably look to a tiny pool of ANC cadres to run the State. Yet, comprehensive control of all levers of power in society (not just government) is what the ANC is striving to achieve. What matters most is not that the deployed cadres can do the jobs to which they are assigned by Luthuli House based committees, but whether the cadres are loyal to the revolutionary longings of the ANC. A lack of competence and capacity is the result. From those flaws flow the non-delivery of the houses, schools, clinics and facilities needed to provide a better life for all.
The combination of wholesale looting and cadre deployment has set back the constitutional project and its planned freedom, dignity and enjoyment of human rights in SA by decades. This is not the fault of the Constitution. Its blueprint is sound. It is the fault of the politicians who have preferred to resort to corruption and cadre deployment, both of which are frowned upon by the Constitution.
If we want to enjoy our human rights more fully then corruption must be countered and cadre deployment in the SOEs and public service must end. The latter is the subject matter of a bill placed before parliament by the DA. The countering of corruption requires reform of the criminal justice administration to better capacitate it to deal with the corrupt among us. The ANC knows this; it has called for the establishment of a new, permanent, stand-alone, specialist entity that is equal to the task at hand. Accountability Now has put flesh on the bones of the resolution of the national executive of the ANC by presenting suggested draft legislation that, if passed, would give birth to a Chapter Nine Integrity Commission, with a clear mandate to prevent, combat, investigate and prosecute the corrupt. Doing so in a constitutionally compliant way has been determined by the courts in terms that are already binding on government.
To have a true celebration of Human Rights Day in the future, we need to support efforts aimed at reforming the features of the State that will enable the effective prosecution of the corrupt and the delivery of services based on our hard won human rights.
Written by Paul Hoffman SC, director, Accountability Now