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.
South Africa’s Constitution is not a purely liberal document. Yes, the Constitution sets up a system of government with three distinct branches of government and insists on the separation of powers between these branches in order for the branches to check the exercise of power by other branches. Moreover, the Constitution contains a justiciable Bill of Rights that includes all the traditional civil and political rights associated with a liberal state: the right against non-discrimination; right to privacy, to freedom of religion, to freedom of expression, freedom to assemble, and the right to vote.
However, the Constitution does more than protect citizens against the abuse of power by the political branches of government – and rightly so. This is because the ability of ordinary citizens to live lives in which they are free to make life choices and to pursue their own interests and advance their well-being (the US Constitution in its characteristically optimistic manner speaks of the “pursuit of happiness”) is not only constrained by the state but also by private institutions and individuals who have the economic power or social status to limit the freedom of citizens, either directly or indirectly. Private institutions or individuals who are not constrained by the Constitution may well act in ways that directly or indirectly infringe on the human dignity of ordinary citizens and will often act to limit the freedom of citizens to make rational choices in their best interest to enable them to live meaningful lives.
Moreover, poor and marginalised individuals (through no obvious fault of their own) often do not have access to the very basic minimum goods and services — housing, health care, adequate education, food, water, electricity and the like — and have no access to the resources to pay for those goods and services that would provide them with even the illusion of the kind of freedom that would enable them freely to choose how they want to live and who they want to become and how they wish to flourish.
That is why our Constitution contains not only the civil and political rights mentioned above, but also a set of social and economic rights. That is also why the Constitution places both a positive and a negative duty on the state to take steps to protect and realise both kinds of rights.
The state therefore has a negative duty not to interfere with the existing enjoyment of one’s right, say, to freedom of expression. Thus it cannot usually pass a law banning any criticism of the President. Similarly, the state has a negative duty not to interfere with one’s right of access to housing. Thus it cannot usually pass a law that would empower the state to demolish your home to make way for a parking lot for the use of politicians or to evict you from your home to make way for the North Korean Olympic team. Similarly, the state has a positive duty to create and maintain a police force and a judicial system, an education system and an electricity grid and water supply and roads and independent institutions to conduct elections, to ensure that we are all sufficiently free and capable to develop and to try and reach our full potential as a human being.
That is also why the Constitution clearly states that one can, in certain circumstances, enforce rights against private individuals and institutions. What use is my freedom of expression, say, if my cell phone company is allowed to prohibit me from sending sms messages criticising the President (especially when this company is in cahoots with all other telecoms companies in the market)? And what use is my right to life, say, if a private hospital can refuse to treat me even as I lay bleeding to death in the reception area of that hospital?
Radical free market capitalists do not like to hear this, but the kind of freedom they envisage and which they say is protected by narrow civil and political rights is often illusory, as any semblance of freedom is premised on access to education, to employment or, in the absence of this, at least to access to all the basic stuff required to make meaningful life choices.
Civil and political and social and economic rights are thus interdependent and indivisible as BOTH kinds of rights — operating in tandem — guarantee the kind of freedom which would truly protect and enhance the human dignity of all citizens. But for those who support human rights only if it protects the free market and the rights and freedoms of those who have the access to resources that would enable them freely to make choices, freedom is often little more than the freedom of the rich to exploit the poor and to continue doing so without interference by the state.
“The law, in its majestic equality,” said Anatole France, “forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” This is the kind of legal regime that those who reject social and economic rights seem to favour. Put differently, in the world of radical free market capitalists, we are all free to choose to stay in the Mount Nelson Hotel if we want to — even if many of us are starving and only very few of us can indeed afford to do so and will ever have the money to pay for one night in the Mount Nelson (unless we happen to be the head of the South African Communist Party in which case the taxpayers will foot the bill).
It is exactly because our Constitution embraces a far more nuanced and expansive (and far less selfishly pro-rich) notion of freedom, that the Bill of Rights includes both social and economic and civil and political rights. That is why arguments made by columnists like Ivo Vegter are so wrongheaded and (to me at least) morally repugnant. In a recent column published on Daily Maverick, Vegter sets up a false dichotomy, arguing that there is a need to distinguish clearly between “freedoms on one hand, and entitlements on the other”.
Freedoms are those rights that prevent another person — and in particular the state — from acting in a way that infringes your liberty. Entitlements are those rights that are economic in nature, and implicitly impose a financial obligation upon someone else.
Vegter fails to acknowledge that liberty itself is not something that can be adjudged in isolation. One has no liberty if one is poor and homeless — except if one defines liberty as the freedom to starve and die of hypothermia. But Vegter, over-egging the pudding even further, then proceeds to make the following astonishing claim that seems to be at odds with any modern notion of social solidarity, which is a bedrock principle on which the modern nation state is based.
The problem is this: if I have a right to healthcare, and I cannot, refuse to, or neglect to pay for it, someone else has to either provide it at no charge, or pay for it. If I have a right to housing, then someone has to buy or build me a house. If I have a right to food and water, which are indisputably necessities of life, and I fail for whatever reason to provide these for myself, then someone else is obliged, by law, to provide them for me. This, in effect, means that someone else has to produce that to which I claim a basic human right, guaranteed to me in the Constitution. There’s a word for people who are obliged to work for others without choice or payment. And those people, under the South African Constitution, have the right not to be subjected to slavery, servitude or forced labour.
In a modern state, the notion of social solidarity leads to the formation of a government that raises money through taxes. In return, the state is required to take such steps as to allow all citizens to flourish. Without this basic solidarity, this notion that we are all in it together and that we have a right to demand that our taxes are spent on roads and electricity production and water purification and education and a police force, there is no need for a modern state.
For citizens to flourish they must be free to make real choices about their lives and how they want to advance their own interests. Without roads, without schools, without a criminal justice system and a police force, without the institutions that safeguard our right to vote, without access to basic health care, no one has any semblance of freedom and the rights that are supposed to guarantee this freedom. Freedom, in essence, is an expensive commodity as are all the rights protected in a Bill of Rights – even in a liberal Bill of Rights that contain no social and economic rights guarantees.
The distinction between rights and entitlements made by Vegter is a false one. None of us can provide everything we need to flourish for ourselves. We need the state to assist us, in essence to provide us with what Vegter calls “entitlements”.
We can have no freedom and no rights, for example, if we have no legal system, no police force, no judiciary, no system of roads, no telecommunications infrastructure, no regular safe and clean water supply and supply of electricity. Without these state subsidised institutions, life would indeed be “nasty, brutish and short” for most people. Yet we have a right to life, a right to freedom of movement, a right to freedom of speech — all derived from the system and the infrastructure paid for by all taxpayers. In the same way, those who do not have money to pay for education of health care should have a right to demand these from the state. If they do not have access to such things, they are not free in any meaningful sense of the word and they have no rights — including the precious civil and political rights, Vegter champions.
All rights are limited by budget constraints. Vegter approvingly quotes someone who claims that: “Rights are not limited by budget constraints, but entitlements are. So, rights are universal but entitlements are not.” This is false. My right to freedom of expression and assembly is limited by budget constraints, just as my right to housing is. For if I want to have my say and if I want to take part in a protest march then I might need the police to protect me from others who might want to kill me for expressing my view. The police service costs quite a lot of money to run and it has limited resources, so it will not be possible in every single case to insist on exercising the right to free speech and assembly and be protected by the police. In any case, how will I be able to protest freely, if I am too hungry to do so? What kind of right is that if my lack of access to food makes its exercise impossible.
Human rights — whether they are civil and political in nature or social and economic in nature — is not to be confused with charity. Vegter seems to argue that whenever rights cost money they are no more than charity. This is conceptually wrong and ideologically reactionary.
Unless one lives in a totalitarian state, rights are a prerequisite for the exercise of one’s freedom. Without the protection of these rights — which are interdependent and indivisible — everyone except the most wealthy and powerful will have no chance of living a meaningful life, a life of dignity, which is the ultimate aim of human rights. It is not charity when the state pays the police to protect me. Neither is it charity when the state pays a doctor to save my life. This is because in both cases, without the intervention of the state, I might not be capable of living a meaningful life or, worse, I might be dead.BACK TO TOP