Patterns of injustice continue to plague the country, writes Muxe Nkondo.
To whom does justice belong in South Africa, in both principle and practice? Recent protests organised by the Landless People’s Movement as well as the #FeesMustFall and #RhodesMustFall movements enjoin us to address this question. We should examine what justice in South Africa consists of, and we should apply the idea of justice to the three social movements.
During the “political settlement” debates that culminated in the adoption of the constitution in 1996, the elite imposed their power on the people.
They created a new judicial system and replaced the popular movement for justice by specialised bodies such as the Constitutional Court.
These bodies were supposed to have originated among the people, but in fact they were created by the elite.
Then the idea developed that the judges are neutral toward all the parties appearing before them, and they judge impartially according to values and principles which are a product of an elitist ideology.
Then the judiciary became, and has remained, an elitist bureaucracy appointed by the state and backed up by the state’s “forces of order” - the police and, if need be, the military.
There is one objection to this idea of justice. Justice must originate among the people.
For the majority of South Africans,situations are basically just or unjust.
Ideology is not involved here, but a much deeper feeling which expresses the fundamental nature of the popular conscience.
Protesters for land redistribution, free education, and decolonisation have an important incentive: desire for justice and moral indignation.
They find the will to seek justice deep within themselves and end up rebelling, thus becoming subject to the same penalties that apply to offenders.
What do the protests mean? The land law, the higher education admission policy, and the colonial symbolic system are part of a totality. They claim to be rational and humanistic.
So far, however, they have been legitimised by the error of the elite, which consider themselves custodians of justice and confuse humanity with elite values and interests.
Because they have inherited privilege, they are immersed from childhood in elitist culture and do not have much difficulty assimilating it during the course of their upbringing.
This is what allows universities to create the type of curricula and institutional rules rightly called elitist and Eurocentric, which start in pre-school.
Based on selection and competition, the system eliminates more and more students, and ends up forming an elitist class of finalists which serves as a base for the complex hierarchies of the state system.
Consequently, the majority of South Africans perceive the land law, higher education, and the colonial symbolic system as a superstructure which is constructed to hegemonise the power and the values of the elite.
In this situation, to bear witness, in court, to the pain of land dispossession, exclusion from university education, and cultural disinheritance, and their manifold social and economic consequences, is to take responsibility for the truth: to speak, particularly, from within the legal protocols of an unjust, violent legal order and to the juridical imperative of the witness’s oath.
To testify - before a court of an unjust law and before the court of South African history, and to testify, likewise, before an audience of the dispossessed, the excluded, and the disinherited - is more than simply to report a fact or an event, or to relate what is being experienced.
Testimony is conjured here essentially to address another, to impress upon a listener, to appeal to the public and strike at the conscience of the nation.
It is also about the true nature of an occurrence, to enable an objective interpretation of what land dispossession, exclusion, and disinheritance are like.
But more crucial than any of these, is the evidence of lived experience over time. It is the power of lived experience that gave President Mandela’s inaugural address, in 1994, its inarguable legitimacy: “Out of the experience of an extraordinary human disaster that lasted too long, must be born a society of which all humanity will be proud.”
Is there anything that we should learn about enduring injustice in South Africa? Anything that can shed light on the ideological origins of our constitutional order? Now that the problem has reached the agendas of three social movements, various options must be explored.
The effort, knowledge, and resources that must be devoted to resolve the legislative and policy dilemma is the responsibility of the ANC-led government and its social partners.
It has the responsibility to broaden understanding of the strategic importance of the “people”, to urge all progressive forces to participate in the movement for fundamental change.
Given its vast experience, stretching 105 years, the ANC has the experience to bring all progressive forces together in an overlapping consensus - across race, class, ethnicity, and gender - which was achieved in the “struggle” years but which, since 1994, the elite have broken up.
But why address the issues of justice and the state through a mobilisation of popular social movements? Because of the recognition that in people’s lived experience far more is involved than the relegation of their collective experience to populist behaviour.
What is involved in such a disdainful rejection, reducing “the people”, as is done in mob psychology, to a dangerous and unassimilable excess, is the dismissal of democratic politics, and the assertion that the management of “the people” is the concern of bureaucratic power whose source of legitimacy is rational knowledge of what a good political community is.
So the task of the ANC, going forward, is to provide leadership, to bring to light the specific logics inherent in people’s lived experience that, far from corresponding to mob or irrational behaviour, is inscribed in the actual working of any democratic society.
The future of South Africa’s constitutional order is intimately linked to society’s ability to address apartheid’s legacies that dominate the daily lives of the majority of South Africans.
Despite the internationality recognised “political settlement” and the process of national reconciliation, championed by the ANC, patterns of enduring injustice continue to plague the country.
Meanwhile, those who benefited from the crime of apartheid persist in denying their complicity.
The three social movements unrelenting struggle for justice serves as an inspiration, setting the highest goals for government, the private sector, and civil society.
While the “political settlement” has produced an elitist, unipolar democracy, the realities of land dispossession, unequal access to higher education, and cultural estrangement continue to produce serious tensions.
However, despite the complexity of the post-apartheid landscape, the adoption of social and economic rights does represent an encouraging constitutional vision.
This provides a conceptual space that enables social movements to pursue and transform the vision through strategies of political mobilisation, legal challenge, and democratic politics.
* Nkondo is a policy analyst and member of Freedom Park Council and Council of the University of South Africa. He writes in his personal capacity.
** The views expressed here are not necessarily those of Independent Media.