Remedial or restitutionary equality are not in themselves a deviation from, or invasive of, the right to equality guaranteed by the Constitution. They are not “reverse discrimination” or “positive discrimination” … They are integral to the reach of our equality protection… Equality before the law protection in section 9(1) and measures to promote equality in section 9(2) are both necessary and mutually reinforcing but may sometimes serve distinguishable purposes.. However, what is clear is that our Constitution and in particular section 9 thereof, read as a whole, embraces for good reason a substantive conception of equality inclusive of measures to redress existing inequality. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.
One of the surprising (but to me, gratifying) aspects of the ongoing student protests is that many protesting students are framing their actions – either explicitly or implicitly – with reference to the human rights guarantees contained in the South African Constitution. It is unclear whether the current protests would have been possible in a state in which the basic rights contained in the Constitution were not protected.
At the time of writing all lectures at my workplace, the University of Cape Town (UCT), have again been cancelled. There will be no lectures until, at the earliest, Thursday morning. All libraries have also been closed as a precautionary measure.
It was impossible to continue with lectures because a group of students (it is unclear what percentage of the student population is taking part in the protest) and other non-student protesters blocked entrance to campus and disrupted classes. The current student protests evoke memories of student protests during the apartheid era.
Partly because of the significance of such protest during apartheid and because of brutal attempts of the apartheid state to clamp down on many types of anti-apartheid protest, the right to assemble and to protest in order to advance a particular cause is enshrined in the South African Constitution.
Section 17 of the Bill of Rights states that “everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”. This right provides students with important protection when they engage in protest.
It is true that some protestors overstep the mark and fail to adhere to the requirement to protest “unarmed and peacefully”. It is also true that sometimes the police or private security fail to respect the right of students by breaking up protests when this is not permitted and by using excessive force against students.
But when this happens, many of those who criticise the protesters for overstepping the mark (and many students who take part in protest action) explicitly or implicitly invoke section 12(1) of the Constitution to make their case. This section guarantees for everyone freedom and security of the person, which includes the right “to be free from all forms of violence from either public or private sources”.
Opponents of non-peaceful protest action imply or state categorically that such non-peaceful protest action threatens the bodily integrity of others. Students on the receiving end of police brutality or the use of excessive force by private security personnel explicitly or implicitly invoke section 12(1) and complain that their bodily integrity have been compromised.
It is not surprising that some students may invoke the right to protest but may turn a blind eye to the stipulation that the protest must be conducted peacefully. Most of us champion those aspects of the Bill of Rights that favour us and oppose other parts of the Bill of Rights that we believe is to our disadvantage.
It is for this reason that some conservative South Africans who claim to be champions of the Constitution are vehemently opposed to affirmative action and BEE, despite the fact that section 9(2) of the Constitution not only permits the implementation of affirmative action and BEE but also in some instances – as justice Moseneke held in Minister of Finance v Van Heerden – requires its implementation as a prerequisite for achieving equality.
Some students complain bitterly when University administrations call private security or police onto campus or obtain interdicts to try and stop student protests from happening. They rightly invoke their section 17 rights when they do so.
They argue that court interdicts limit the rights of those interdicted students from protesting. Where an interdict prohibits a person from setting foot on campus, they complain that the person’s right to freedom of movement (guaranteed by section 21 of the Bill of Rights) is being limited or that his or her right to education (guaranteed by section 29) is being compromised.
In an authoritarian or fascist state the police would have detained all the protesting student, or at the very least, all the leaders of the protest (as the apartheid state did) and might have tortured and even murdered many of them (as the apartheid state also did). The government of such a state might also have sent in the army to shoot on protesting students “to teach them a lesson”.
While the police do not always respect the rights of citizens and sometimes engage in shocking acts of brutality (as they did when they massacred miners at Marikana), it is unthinkable that our government would order the army to open fire on unarmed students. And if the police were to round up and detain all protesting students, lawyers would immediately rush to court to have them freed.
In doing so, lawyers would invoke section 35 of the Bill of Rights which prohibits detention without trial and also guarantees for everyone the right “to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released”.
It is also unthinkable (to me at least) that our government would shut down the internet to prevent students from promoting their cause on social media. Nor is it feasible for the government to shut down or block access to specific websites like Twitter and Facebook (as the Chinese government does) on the grounds that students use these platforms to mobilise their fellow students. It is also unthinkable that the government would close down TV and radio stations or newspapers for broadcasting news of the protests.
But if some or other Minister in the government went completely stark raving mad and indeed attempted to implement the types of censorship mentioned above, an army of lawyers would rush to court to challenge these actions. The lawyers would invoke section 16(1) of the Constitution, which states that everyone has the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.
I would guess that a sizable number of fellow citizens would also go out onto the streets to protest if a government ever imposed such draconian measures. Many of us would be outraged if the government clamped down on the freedoms enshrined in the Constitution and would rally against these authoritarian actions. At the mass demonstration that will follow, many of us would invoke our constitutionally guaranteed rights and would use these as a rallying cry to oppose the measures taken by the government.
Of course, it is not only the protest action itself which is partly made possible by the rights guarantees in the Constitution. Many of the demands articulated by students can also easily be formulated in terms of the rights protected in the Bill of Rights.
Conservative opponents of the student protests who see themselves as the guardians of the Constitution might not like this, but the demand that no student should be excluded from education merely because he or she cannot afford the cost, is a demand that finds echoes in section 29(1)(b) of the Constitution. This section states that everyone has the right to “further education, which the state, through reasonable measures, must make progressively available and accessible”.
As I have explained before excluding students from higher education because those students lack the funds to pay for it, may well infringe on section 29 of the Constitution. As I wrote last year:
Where the state cuts funding to higher education institutions (as it has done since 2000), making it more difficult for many students to gain access to higher education of a better quality, the state is engaging in “deliberately retrogressive measures”. It would not be easy for the state to justify such retrogressive measures in the higher education field, given the fact that the Auditor General has pointed out that billions of Rand have been lost by the state to maladministration and corruption over the past 15 years.
Because the Constitution imposes a duty on the state and on Universities to provide higher education, the Universities are deprived of probably its most potent and radical bargaining chip against students. Because the Universities have an obligation to all students to provide higher education, they cannot close campuses indefinitely and neither are they permitted to cancel all exams to force all students to repeat their year.
As students know that this radical option is not open to the government or to Universities, the threat of losing an entire year of study if protests do not end will ring hollow. This strengthens the hand of protesters vis-à-vis the government and the Universities as they know that arrangements or exams will be made at a later date and that the chances of all University students across the country losing an entire year due to protests is slim.
Some of the student protesters also campaign for an end to patriarchy, which violates the rights of women, LGBTQI people, and other minorities. This demand implicitly or explicitly mirrors the constitutional obligations imposed on the state by section 9(3) of the Constitution.
Section 9(3) places a positive obligation on the state and on institutions like Universities to take steps to dismantle the structures which perpetuate the subjugation, marginalisation, and exclusion of individuals because of their sex, gender, or sexual orientation. When students demand the end of patriarchy, they demand the realisation of the promise of section 9(3) of the Constitution.
The Constitution is not perfect. Neither, in my view, is all its provisions always interpreted or applied in a progressive manner.
One could argue about this or that Constitutional Court judgment and could make an argument for a more radical interpretation of some of the rights in the Bill of Rights. One could also complain about the manner in which some provisions of the Constitution are flouted by the government or parliament. One could point out that the government has failed vigorously to implement all aspects of the Constitution, including aspects relating to land redistribution and the provision of free education. One could point out that courts remain inaccessible to many due to the excessive cost of litigation.
But if one happens to be a student protester with some access to legal representation provided by NGO lawyers, one enjoys immense protection against potential authoritarian abuse by the state because of the Constitution.
It is therefore strange to blame the Constitution for many (or even all) of South Africa’s ills. The Constitution helps to safeguard the democratic space within which the kind of political contestation that student protesters currently engage in can occur. It also provides a powerful language in which one can formulate political demands.
So, as I have written before, to blame the Constitution for what are essentially various failures of governance, is a bit like blaming an umbrella for the rain.BACK TO TOP