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SA breathed a collective sigh of relief yesterday at the news that the National Prosecuting Authority had decided not to charge the striking Marikana miners with the murder of 34 of their colleagues.
Aside from the ugly echoes of the notorious “common purpose” doctrine used under apartheid, the decision to charge the miners, announced last week, was at odds with a number of fundamental rights.
These include the right to free association and the right to strike. If “common purpose” can be used in this way against striking workers, the right to strike is significantly diluted.
Dilution of so-called “first generation” rights such as the right to strike or the right to freedom of expression and association makes it all the harder to win “second generation” rights.
History has shown that even in countries where fundamental human rights are well entrenched, the battle for “second generation” or socio-economic rights has been long and hard.
In France, the famous “Declaration of the Rights of Man and of the Citizen” in 1789 marked a milestone in first generation rights. But it was only with the Constitution of the Fourth Republic, in 1946, that socio-economic rights such as the right to education and health were established, and only in 1971 that these rights were formally recognised by the Constitutional Court.
In other words, the process of entrenching second generation rights has taken 157 years, through periods of terror, empire, absolute monarchy, the Commune, and democracy, and is still continuing.
South Africans can obviously plot their own route forward. But without the conscious and painstaking respect on the part of the state for the fundamental human rights enshrined in the 1994 constitution, and without continuous engagement by citizens in the institutions of the state, the battle for socio-economic rights will be that much harder to win.
The right to associate freely and the right to strike are key weapons in the struggle for economic equality, and any dilution of these constitutional rights is a very serious matter indeed.