OPINION: The provision of services by government officials to the people is not a matter of choice. Instead, it is a mandatory exercise. Whenever people are deprived of these services, their human rights are violated. Failure to deliver services to the people does not only amount to dereliction of duty, but it is also in contravention of the Constitution of the country, writes Professor Bheki Mngomezulu.
By Professor Bheki Mngomezulu
THE SUBJECT of human rights cannot be fully understood in South Africa outside of history. As the saying goes, ‘a nation that does not know its history will regress’. George Santayana, one of the world-renowned philosophers, aptly captured this saying as follows: “Those who cannot remember the past are condemned to repeat it.”
This can be likened to a new CEO who arrives in a company and unilaterally makes changes without first consulting those he found there. In the process of introducing “new and innovative ideas”, such a CEO is bound to inadvertently reinvent the wheel. In other words, repeating past mistakes which derailed progress.
Within this broader context, almost three decades since the dawn of democracy in South Africa, it is important to reflect on how far the country has gone in terms of either protecting or consolidating human rights. In the event that this goal has not yet been fully achieved for one reason or another, what should be done to achieve it going forward? This is a very pertinent question which needs urgent attention.
Historically, human rights have always been an important issue in South African politics and lexicon – albeit in different contexts. Under apartheid, these human rights were protected by the government of the day specifically for the white minority, while those of the black majority were being trampled on. At the centre of the liberation struggle was the issue of fighting for these human rights to be protected beyond racial preference or the racial divide.
The unwarranted killing of 69 innocent black people in Sharpeville on 21 March 1960, where an estimated 180 people were also wounded, happened within the context of protecting human rights and human dignity. Blacks were vehemently opposed to the pass laws which humiliated and reduced them to the status of being second-class citizens in their own country, just because of the colour of their skin. This continued unabated throughout both the colonial and apartheid periods. There was optimism that the demise of apartheid would bring about a new dawn in people’s lives.
Indeed, at the dawn of democracy in 1994, expectations were high that under the new democratic government, the rights of all South Africans would be protected. In a way, this goal was partly achieved. The date of 21 March was declared a public holiday in honour of those who died protecting black human rights and dignity. Moreover, starting with the Interim Constitution in 1993 and the subsequent adoption of the current Constitution in 1996, human rights were guaranteed in Chapter 2 of the Constitution.
Since then, each year, a theme is coined to shape other activities. In 2022, the theme was: “Dignity, Freedom, and Justice for All.” This year’s theme is: “Consolidating and supporting human rights culture into the future.” Both themes embrace the need to improve the lives of the people through service delivery. If that does not happen, people’s human rights are trampled on, and the Constitution is violated.
The synopsis presented above on how the country has evolved since 1994 paints an optimistic picture – correctly so. But, despite these giant strides, the reality is that not all human rights have been protected by politicians and their political parties. Sometimes, this is due to failure to understand the contents of the Constitution. In other instances, it is complacency. Worse still, political arrogance, as well as a lack of skills and knowledge, result in human rights being trampled on.
It is true that RDP houses were built and that electricity supply was extended to many areas that previously did not have it. It is also equally true that the supply of running water was extended to many areas that previously did not have it.
While these historical facts can be authenticated, the reality of the matter is that South Africa is not where it is supposed to be when it comes to the protection of human rights. As such, while it is still important to celebrate Human Rights Day every year, it is equally important to reflect on lack of service delivery and link it to human rights violation.
To achieve this goal, one has to take a closer look at relevant sections in the constitution and check them against the prevailing circumstances in the country today. Government as a whole has the responsibility to protect human rights. By virtue of being the governing party at the national level, the ANC has to take the lead. Failure to do so amounts to the violation of human rights.
Chapter 2 of the Constitution of this country focuses on human rights. Section 7, Sub-section 1 states categorically that “This Bill of rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom”. Various sections in Chapter 2 focus on specific rights that should be protected in terms of the Constitution. Some of these sections will be briefly ventilated below.
Section 10 focuses on human dignity. It specifically states that “everyone has inherent dignity and the right to have their dignity respected and protected”. If this is the case, a Councillor, MEC or Minister who fails to provide services to the people neither respects nor protects the dignity of those people. As such, the Constitution is contravened.
Section 11 states that “everyone has the right to life”. As a human rights issue, such life could be interpreted in the context of capital punishment and abortion. On the other hand, it could be linked to Section 27, which focuses on the right to health care, food, water and social security.
Many rural communities do not have access to clean water. This is the case even for people who reside within Jozini and uMhlabuyalingana Local Municipalities. Water is plenty at the Jozini Dam (also known as Pongolapoort Dam), and yet local communities do not have access to it. This poses a threat on their lives and thus amounts to a human rights violation.
The right to education, as contained in Section 29, is critical – not just for immediate gain but also for the future of the country. There are two issues here. The first one is encapsulated in Sub-section (2), which states that “everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practical.” In many schools and tertiary institutions in South Africa, education is offered in foreign languages. This undermines the rights of learners and students.
The second issue has to do with the provision of classrooms. Almost three decades since the dawn of democracy in 1994, the country still has mud classrooms. In other instances, modern classrooms exist but are in bad condition. These are not conducive for proper teaching and learning. Such lack of service delivery is in contravention of the constitution; it is an antithesis of human rights promotion.
On the legal front, Section 34 focuses on the right to access courts. On paper, everyone has the right to access courts if a need arises. However, in reality, this is not the case. Those who have the money to pay lawyers have easy access to courts. By contrast, those who are poor are not able to enjoy this constitutional right. For this reason, their rights are being violated.
Based on the contents of this section, it is clear that any failure to protect the democratic values of human dignity by denying people basic services amounts to the contravention of the Constitution and the trampling on the rights of the people. Since South Africa is a unitary state, it does not matter whether these rights are violated at national, provincial or local level.
As long as people are denied services, such action amounts to the contravention of the Constitution. Politicians in general and government in particular (including the governing ANC and the other 13 political parties) can provide justification as to why they fail to render services and protect human rights. However, there are seven rights which are listed in the constitution as being non-derogable.
In simple terms, non-derogable rights are defined as rights that are absolute and may not be subject to any derogation, even in times of war or emergency. These rights are Section 9 on equality; Section 10 on human dignity; Section 11 on life; Section 12 on freedom and security of the person; Section 13 on slavery, servitude and forced labour; Section 28 on children and Section 35 on arrested, detained and accused persons.
Against this backdrop, the provision of services by government officials to the people is not a matter of choice. Instead, it is a mandatory exercise. Whenever people are deprived of these services, their human rights are violated. Importantly, failure to deliver services to the people does not only amount to dereliction of duty, but it is also in contravention of the Constitution of the country.
* Professor Bheki Mngomezulu is Director of the Centre for the Advancement of Non-Racialism and Democracy at the Nelson Mandela University.
