Despite the many moves to hold the government accountable, ours remains a deeply divided society, says Eusebius McKaiser.
Johannesburg - We tend to be very self-congratulatory about our human rights jurisprudence as South Africans. And rightly so. But after 20 years of democracy it is time to take stock of both the achievements and limitations of public-interest litigation.
A conference two weeks back, organised by the Ford Foundation, allowed for exactly such a conversation to happen. The insights that emerged were fascinating.
It is important that we never take for granted the radical break from a past in which Parliament reigned supreme to the present, where constitutional supremacy is the bedrock of our democracy.
The practical consequence of this change is that rights are better protected than before. Better still, socio-economic rights are legally enforceable against the state.
Human rights lawyers and various civil society organisations have used public-interest litigation to great effect over the years to help enforce the state’s legal duty to realise socio-economic rights progressively. And this is why we have so many landmark cases that have been studied across the world, and used in comparative international law.
Most famously, of course, is the Treatment Action Campaign’s successful court win against the state that compelled the state to roll out antiretroviral drugs to pregnant women.
But there are many other cases too, from ones forcing the SANDF not to discriminate against soldiers who live with HIV, to the Grootboom case, which resulted in the government’s housing policy being reviewed.
Many public-interest litigators and organisations need praise. There are too many to list exhaustively, but they include the Treatment Action Campaign, Section27, CALS, SERI, Equal Education and countless others. Individual lawyers like Adila Hassim, Geoff Budlender and even jurists like former Constitutional Court judges Zak Yacoob and Kate O’Regan are crucial names in this story too for their roles in helping to safeguard the constitution.
Activists like Zackie Achmat are at the centre of this public-interest litigation success too, ensuring our public representatives feel the political pressure to respect the law with well-organised grassroots support for the legal processes playing out in court. In addition, Achmat understands the law brilliantly, self-taught like his colleague Mark Heywood on matters of human rights.
But here’s the snag. It is 20 years into democracy and the black African majority remain massively impoverished and excluded from opportunities to flourish. South Africa is a deeply unequal society, and becoming more unequal in some respects.
Mrs Grootboom never lived in the house she desired. And lesbians still get raped and killed despite the impressive gay rights jurisprudence we brag about.
Public-interest litigators know this. They aren’t politically dumb or naive enough to think you can achieve substantive equality just through court victories. And so I wouldn’t accuse them of fetishising litigation.
And, to be blunt about it, we need more public-interest litigation, not less, to hold the government continuously accountable.
But it is clear that public-interest litigation isn’t enough. And this means that funders of these organisations, and the organisations themselves, need to rethink the tools they use and their strategic posture in the battle to achieve a more just South Africa.
For example, do we litigate too soon sometimes? Is there sufficient and quality dialogue and negotiations with the state before resorting to the adversarial option of going to court? Are the correct test cases always picked to pressure government policy on key issues such as water provision?
At this conference, a key point was raised by Kenya’s chief justice, who remarked that in his country, the relationship between public-interest litigators and social movements needed to improve so that they could win many more political battles and lessen the need to run to the courts all the time. The same advice, I think, applies to us here.
We also tend to underuse the law, though. Lawyers have tested existing government policy, but presumably the Bill of Rights also allows for civil society to take the state to court to answer why it might lack policies or detailed plans to ensure socio-economic rights are enjoyed by citizens. I’m not aware of pre-emptive cases; only ones that react to existing policy.
So while we have much to celebrate as a country in the area of public-interest litigation, the limits of the law to ensure substantive equality must be acknowledged.
This is one more reason why political processes, like the elections on May 7, matter. They are all mutually reinforcing ways of holding the government accountable. We must take these processes seriously, or live with consequences such as having unresponsive governments.