As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
It might sounds like an incendiary thing to say, but I will say it nevertheless: As South Africans we are not really free in any sense of the word. In 1994 South Africa became a democracy and in 1995 we adopted a Constitution that guaranteed both civil and political rights and social and economic rights. On a formal level this made us free citizens living in a democracy. At the heart of the new Constitution was the notion that everyone in South Africa – yes, also non-citizens – have an inherent human dignity that must be respected and protected.
But in reality, this promise of the Constitution has remained just that: a promise, as yet unfulfilled.
When somebody starves; when somebody must sleep under a bridge; when somebody must go through life without being able to read and write; without being able to do a decent days work; when somebody is arrested and tortured by the police; when somebody is discriminated against because of the colour of her skin or her sexual orientation or gender; when somebody is harassed or intimidated by a state official when he says something that some overweight politician or captain of industry does not agree with; when somebody has to relieve themself in an open toilet; when somebody is treated like a second class citizen because she is an atheist or a Muslim, then the inherent human dignity of that person is not being respected and protected.
For some among us (as our former President Thabo Mbeki often said when he wanted to vilify some group or another who had criticised his actions), freedom is about the right to be left alone by the state so that we can enjoy the fruits of our labour. We all get what we deserve and those who are at the bottom of the ladder are there because they are lazy, stupid and depraved and those at the top are there despite the annoying interference by the meddlesome nanny state. This kind of negative liberty presupposes, of course, that we are all born free and equal and that we all have equal opportunities fully to make use of our talents.
This negative view of liberty is obviously based on a fiction.
This view is blind to the fact that some South Africans eat three meals a day, live in comfortable houses, have access to good books, newspapers and the internet, go on foreign trips, and attend excellent schools where they are taught in their mother-tongue (almost always English) while others go to bed hungry some nights, live under bridges or in one room shacks, have never operated a computer or read a book, are taught – if at all – in their second, third or fourth language (always English) by drunk teachers who seldom take any interest in their jobs.
This view of liberty is blind to the fact that some people have a head-start in life because of the colour of their skin which might immunise them from the pervasive structural racism in our society, or because of their sexual orientation or their male gender – which may insulate them from reality and may often make them oblivious to the vilification, marginalisation, assault or even murder that is often visited upon those who are deemed by society not to fit in or not to form part of the dominant group.
Our Constitution has embraced a different understanding of freedom.
This view of freedom, linked to the notion of the inherent human dignity of every person, goes beyond a negative conception of liberty and endorses the view that to be free we need to have a fair chance in life to achieve our full potential as human beings. This, necessarily, requires both the state and others to take steps to help create the conditions in which human beings can flourish. It requires the state to help those who cannot help themselves, or at least, cannot make use of the opportunities in even remotely the same manner as those who have been born with the silver spoon of the English language in their mouths (and perhaps two Mercedes Benzes in the garage).
In this view, freedom and equality rights are ideals we are striving to achieve, not (only) rights that we invoke now to stop others from limiting our existing enjoyment of our privileges and freedoms or to protect us from an interfering state who is trying to take away our right to speak or criticise the government or our right to own three mansions in Sandton and eat Sushi from the bodies of women in bikini’s. Most South Africans are not free – yet. Most South Africans are not equal – yet. The state and other role players must take reasonable steps progressively to create the conditions in which we can all be free to achieve our full capabilities as human beings.
To achieve this goal will take a very, very, very long time. In fact, the achievement of the kind of equality and freedom I postulate here is probably impossible and will remain an ideal that will animate a certain kind of human rights discourse for a long time to come. We are on a journey and travelling on a bridge that is taking us to the end of the universe and we are still building that bridge while we are travelling on it, knowing full well that we will never finish with the building of the bridge and with our travels.
What do we do in the meantime to soothe our souls or to make us feel better about our own relative privilege or the perceived undeserved privilege of others around us? (Oh, those glorious weeks spent in the Mount Nelson Hotel, the wonderful luxury of an air-conditioned leather-seated BMW, the comfort of a roof over one’s head, the luxurious smell of a new coffee table book or the comforting smell of a freshly cut lawn, the wonders of a meal at The Spur or the Wimpy Bar, the indulgence of a hot bath!)
One way to deal with all of this is to wallow in debilitating guilt. Paralysed by such guilt one does nothing but express one’s shame and ostentatiously asking for forgiveness from those who cannot give it or give it too glibly. One never raises one’s voice about what is wrong or suggests how we can make things better for fear of being reminded of one’s own privileged position. One patronises others with one’s own conspicuous compassion and “understanding” and try and escape responsibility for anything by doing very little or nothing that is constructive and is helping to build that bridge.
Another way to deal with this situation of un-freedom is to work up a white-hot (but disempowering) anger and to blame others for the state of affairs. As if one has no agency oneself, as if one is helpless in the face of dark forces manipulated by others, one rails against the racist, the liberals, the whites, the blacks, the foreigners, the moffies, the counter-revolutionaries, who are to blame for everything – including one’s own sense of shame at either having it so good while so many around you have no genuine life opportunities or of not having it good at all. Blade Nzimande seems to fall into this category, railing against those who think the “darkies” cannot run the country to escape his own sense of inadequacy, helplessness and shame.
The place where I would like us to get to – while we work on building that bridge – is the place where the protesters in Tahrir Square in Egypt seem to be after their peaceful half-revolution. They might not be free (yet) in any sense of the word, but they are trying to live like free people. I leave you with the words of Yasmine El Rashidi, writing in the New York Review of Books about the day Hosni Mubarak finally resigned:
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Cairo felt like a new place. When I got to the square, many of my friends, and tens of thousands of others who had stayed out to all hours were already back, putting things in order. A friend tweeted, “I am falling in love with brooms.” Another, “Guys, whoever is still coming to #Tahrir, we need black n white paint and rollers! We’re repainting and reconstructing pavements. Pls.” In the square, someone was holding a sign saying “Freedom Equals Responsibility” and groups of youth were chanting “no one throw garbage on the ground.” A guy with a loud speaker was asking people not to step on the freshly painted pavements; in some places, people were forming human shields around the wet paint.