SA's Next Great Human Rights Battle
Today is International Human Rights Day, a day that marks the United Nations General Assembly’s adoption of the Universal Declaration of Human Rights in 1948. 2018 presents a particularly special year in that it symbolises the 70th anniversary of this venerated document.
The years of the Zuma government brought about a sustained attack upon our Constitutionally enshrined institutions without which there can be no full realisation of human rights. The judiciary is the one branch of government that is generally thought to have protected the Constitution. International Human Rights Day is an occasion to reflect upon the role of our courts and how they have upheld the Constitution and thus the fundamental human rights which lie at its core.
It was not a foregone conclusion that under conditions of political stress, the courts would remain independent and defend the Constitution. In many countries, courts have been supine or allowed major intrusions of executive power to take place. In Poland, the independence of the superior courts has been hollowed out by compulsory resignation and executive manipulation. In the US, a divided Supreme Court, where a conservative majority prevails, has shown considerable deference towards a new administration that has sought to assume drastic powers. More generally, democracy in many countries is under threat from authoritarian intrusion. Freedom House’s 2018 Freedom in the World index notes that this year marks the 12th consecutive year of decline in global freedom, with 71 countries recording net declines in political rights and civil liberties, and only 35 noting gains. A major contribution to this downward trend comes in the form of numerous attacks on the rule of law around the world. The courts can either play a critical role in resisting executive intrusions or in permitting them.
Reflecting on the last ten years in South Africa, I examine how well our courts have fared in the face of severe threats to Constitutional democracy. Two questions are of particular importance:
- Where actions have been taken to subvert or undermine the institutions of a democratic state, have the courts been able to defend the independence and proper functioning of these institutions?
- Where international human rights obligations were disregarded, have our courts done all in their power to condemn such disregard and hold those responsible to account?
I then briefly look at the issue which may well occupy the courts in the years ahead, namely the amendment to the Constitutional property rights clause in respect of expropriation without compensation. Human rights cannot thrive within a depleted institutional framework, and the Zuma years saw attacks on South Africa’s institutions across the board - the National Prosecuting Authority, the priority crime fighting unit ‘the Hawks’, the police oversight body - Independent Police Investigative Directorate (IPID) etc. In these dark times, civil society proved to be a bright light: NGOs across the political spectrum took on the task of challenging the assault on our democracy in our courts. Our judiciary, in turn, accepted to hear these politically charged cases with growing dexterity, confidence and - on many occasions - jurisprudential innovation. Judgements produced results that were of great significance. The Nxasana case, for example, held that the termination of Mxolisi Nxasana’s appointment as National Director of Public Prosecutions was unconstitutional, thus resulting in the removal of his successor, the highly compromised Shaun Abrahams. This was a momentous win for South Africa’s democracy. The courts - over many years - also saw civil society fight tooth and nail for the independence of the Hawks. In 2011, the Constitutional Court innovatively located the source of the duty to fight corruption in the Constitution: “The Constitution is the primal source for the duty of the state to fight corruption. It does not in express terms command that a corruption-fighting unit should be established. Nor does it prescribe operational and other attributes, should one be established. There is however no doubt that its scheme taken as a whole imposes a pressing duty on the state to set up a concrete and effective mechanism to prevent and root out corruption and cognate corrupt practices. As we have seen, corruption has deleterious effects on the foundations of our constitutional democracy and on the full enjoyment of fundamental rights and freedoms. It disenables the state from respecting, protecting, promoting and fulfilling them as required by section 7(2) of the Constitution.” [para 175, Glenister v President of the Republic of South Africa and Others (CCT 48/10) , Helen Suzman Foundation as amicus curiae] On the basis of all the jurisprudence around the independence of the Hawks, the Helen Suzman Foundation - with the assurance of strong and principled courts - secured further victories for democracy in insulating IPID from executive intrusion, after the Minister of Police suspended the head of IPID. This action was declared unconstitutional and reversed - another major and very concrete outcome. A further example of judicial robustness is to be found in the Nkandla case which resulted in a landmark judgement penned by the Chief Justice on behalf of a unanimous court. This judgement held that the president, as well as the National Assembly, had acted unconstitutionally. To find fault with and hold both the President - the highest member of the executive branch - as well as the National Assembly - the lower house of the legislative branch of government - is, worldwide, not something that occurs often. Generally, courts show considerable circumspection around diplomatic immunity, even when it is asserted by egregious violators of human rights. Our courts, however, have been vocal on South Africa’s international human rights commitments despite arguments around immunity, which the case of Al Bashir case demonstrates exemplarily: instead of complying with its obligation - as a member state of the International Criminal Court - to arrest the Sudanese President during an African Union Summit, our government allowed Al Bashir safe passage in and out of the country under what it considered the protections of diplomatic immunity. Al Bashir is wanted for five counts of crimes against humanity, two counts of war crimes and three counts of genocide. Hundreds of thousands of individuals endured nightmarish suffering and death at his figurative hands. Both the High Court and the Supreme Court of Appeal scathingly found our government to be in contempt of its international law obligations. However, not only is the judiciary robust in respect of other actors, it is willing to subject itself to scrutiny. In the important but rather under-the-radar JSC judgement handed down earlier this year, the Constitutional Court held that the Judicial Services Commission’s deliberations about the appointment of judges are not confidential, this subjecting these to all the rule of law requirements of such a weighty exercise of public power - the very way in which the judiciary is constituted.
The next big looming legal issue is surely that around property and expropriation without compensation. It is clear that our courts have been greatly robust in defending freedom and human rights in the past. We shall see how they fare in relation to the proposed amendment to the right to property enshrined in Section 25 of the Constitution’s Bill of Rights. Of course, whether this issue comes before the courts at all hinges on the wording of the proposed amendment: if it simply makes explicit what is already implicit in the Constitution, there is no basis for legal action. In its current form, the Constitution does allow for instances of expropriation without compensation where this is just and equitable. If, however, the amendment proposed stands to infringe other rights and/or the rule of law itself, the courts can be sure that their work will be cut out for them; various civil society actors have already stated their readiness to take on this matter in the courts.
On International Human Rights Day, it must be remembered that the right to property is also a human right:
Article 17 of the United Nations’ Universal Declaration of Human Rights reads as follows:
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Of course the courts will consider the imperative of land reform. However, contrary to a widely held myth, expropriation without compensation is but one (controversial) hypothetical mechanism to realise land reform. And whether this mechanism - in its ultimate formulation - is Constitutional remains to be seen.
Cecelia Kok is Head of Research and Advocacy Projects, South Africa, Friedrich Naumann Foundation for Freedom