An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Travel is supposed to broaden one’s perspective. It can, however, also help to confirm one’s prejudices. I have just arrived back from Sydney where I attended a human rights conference and I am still deciding whether it broadened my perspective or merely reinforced my preconceived ideas about Australia.
One thing is certain: South Africa is a far more interesting country to live in than Australia. How so many South Africans could have decided to emigrate to that country is beyond me.
Maybe these former South Africans like the fact that there are far fewer poor people in Australia, that the poverty there is mostly hidden away, and that one can be conspicuously and nouveau rich without having to worry about how it might look to others or without having to worry too much that somebody might try and make you feel guilty about the fact that the land was stolen from the original owners of the land. Or maybe they like the fact that they can go through a day or a week without ever having to think about Julius Malema, Sunette Bridges or Afriforum.
Personally I would die of boredom if I had to live in Australia. Goodness, it’s a country with no justiciable Bill of Rights. Two years ago a government commission investigated the possibility of introducing a Bill of Rights and recommended that Australia join other modern democracies by adopting such a Bill of Rights. The government rejected this recommendation. At the conference I attended the Attorney General justified this decision by arguing that the legislature can be trusted to protect the rights of all Australians and that introducing a Bill of Rights would give far too much power to judges.
I was too polite — being a guest and all — to point out that because Australia did not have a Bill of Rights it lagged behind South Africa when it came to the legal protection of vulnerable and marginalised groups. Same-sex couples are not allowed to marry in Australia and when citizens of Australia were illegally detained at the concentration camp at Guantanamo Bay, the Australian government said or did nothing.
One of the biggest human rights issue in Australia – apart from the fact that the colonisers stole the land form the original inhabitants and until 40 years ago had a policy which sanctioned the removal of the children of some original inhabitants from their parents and placed them in foster homes, creating the “stolen generation” — is the treatment of refugees and asylum seekers.
South Africa is, of course, not unfamiliar with xenophobia. Former President Thabo Mbeki might have argued that South Africans might not be xenophobic and that the murderous violence against foreigners in 2008 had nothing to do with xenophobia, but we have come to expect this kind of denialism from him. He really should get out more and speak to ordinary people — both to South Africans and to people from the rest of the continent — who will soon tell him that his claim that the violence of 2008 was not xenophobic is just as preposterous as his previous questioning of the link between HIV and Aids.
In South Africa, despite the sometimes harsh treatment of foreigners by locals and persistent allegations of corruption by Department of Home Affairs officials dealing with refugees and asylum seekers, the official policy of the South African government is — in line with the provisions of our BIll of Rights – far more respectful of the rights of such groups than in Australia. In that country, refugees and asylum seekers are imprisoned in harsh conditions and both major parties fall over their feet to demonstrate how harsh they will treat the refugees and asylum seekers who seek safety from prosecution in Australia (which styles itself as a “mature democracy”).
This is a huge election issue as most Australians seem to fear that they will be “swamped” by people arriving in boats from other parts of Asia. When I heard that all such refugees and asylum seekers who arrive by boat are locked up in detention centres (a kind of detention without trial) I envisaged huge concentration camps with hundreds of thousands if not millions of refugees incarcerated there. (Detention without trial sounds kind of familiar to South Africans, does it not — no wonder some white South Africans feel right at home there.)
On Monday the banner headline in the local Australian newspaper announced that the amount of refugees and asylum seekers who had arrived in Australia this year had reached an all time high. The amount of people “swamping” Australian had reached the staggering number of 5800. At first I thought this was a misprint. All this angst and fear because 5800 desperate people had arrived in Australia in small boats. But no, this was the correct figure.
Wonder if it has anything to do with the fact that almost none of those who arrive to seek refuge in Australia are white? In 2009 less than 2000 people came to Australia as refugees and asylum seekers (the white South Africans with money obviously are not included in this figure), yet the newspapers reported about this as if this was a national crisis.
Although official figures are difficult to come by, we all know that there are millions of undocumented immigrants, refugees and asylum seekers in South Africa from all over the African continent. Imagine what the Australians would have said and done if they had lived in South Africa. Imagine what political capital the government and the opposition would have made out of this. Imagine what pressure our courts would have been under to endorse the inhumane incarceration of all refugees and asylum seekers in concentration camps.
The attitude of Australians place the terrible xenophobic violence in South Africa in 2008 in some kind of context. Of course it does not excuse it. Nothing could — despite the best efforts of our pipe smoking former President. Neither does it excuse the unofficial and sometimes official callousness of South African officials when they deal with refugees and asylum seekers. But in South Africa the Bill of Rights protects such refugees and asylum seekers and organisations such as Lawyers for Human Rights do brilliant work to protect asylum seekers and refugees from discrimination and often successfully approach our courts to help protect the rights of such groups.
In Australia such groups have no legal rights. They might as well have been locked up at Guantanamo Bay. And despite what the Attorney General of Australia said, the legislature is not going to protect such people anytime soon. That is why one needs a Bill of Rights – to protect the marginalised and the vulnerable that will not be protected by the politicians. If the politicians in a so called “mature” democracy do not want to accept that, one must wonder how mature they really are.BACK TO TOP