Christine Botha: Acting Director, Centre for Constitutional Rights – 21 March 2019
On 21 March, South Africa celebrates Human Rights Day, historically linked to the tragic events at Sharpeville on 21 March 1960. On this day, 69 people died and 180 were wounded when the police fired on a crowd gathered in protest against apartheid pass laws. On this day, we as South Africans are reminded that the explicit protection and promotion of human rights in the Bill of Rights came at a cost to many. Today, the Bill of Rights provides the ordinary person with the power to confront, test and hold the State, in specific, accountable.
So how is the State doing in fulfilling its constitutional mandate in protecting, promoting and fulfilling rights? If we reflect on 2018, the State’s attempt to fight corruption and restore the credibility of State-owned enterprises (SOEs) and State departments was a critical turning point. One cannot view corruption in isolation. It directly influences the State’s ability to fulfil rights, as the Constitutional Court emphasised in Glenister v President of the Republic of South Africa. Corruption directly impacts on the resources and institutional capacity of the State, and sadly, it is the most vulnerable in society (whose livelihoods depend on the delivery of essential services, such as access to healthcare, housing and education) that pay the price.
Various commissions of inquiry were established in 2018 by the President to investigate corruption at several public institutions. This, coupled with the announcement of lifestyle audits for Members of the Executive and civil servants, and reports of a National Guide for the appointment of board members to State and State-controlled institutions, were all positive developments. However, this has to be weighed against the extent of the corruption revealed at these commissions and other shocking revelations, such as the R1.84 billion stolen from VBS Mutual Bank by the Bank’s directors, politicians and senior executives. The slow pace of criminal investigation into corruption and the seeming lack of attempts to trace and recover stolen money does not instil public confidence in the State’s ability to fight corruption. However, one has to acknowledge the serious capacity and resource constraints aggravating this dire situation. The National Director of Public Prosecution (NDPP) 2017/2018 Annual Report revealed the need for R153 million to fill 244 critical vacancies in the NPA. This will have a crippling effect on the criminal justice system’s capacity to fulfil its constitutional mandate.
Although the fight against corruption and organised crime is critical, the recurring and mind-boggling failure of State departments to adhere to the Auditor-General’s (AG) recommendations directly impacts the State’s mandate to fulfil rights. This failure again comes at the expense of the poorest and most vulnerable. In the AG’s 2017-18 Consolidated General Report on national and provincial audit outcomes, delivered in November 2018, the regression in clean audit outcomes and the alarming increase in fruitless and wasteful expenditure – by over 200% from the previous year, to R2.5 billion – was emphasised. The AG held that this situation was mainly due to the recurring failure to adhere to past recommendations of his Office. The AG also specifically called for urgent intervention in the provincial departments of health, education and public works, as they received the poorest audit results. These departments arguably form the pillars of the State’s socio-economic mandate to its citizens.
This dire situation might to an extent be addressed by the newly enacted Public Audit Amendment Act, 2018. The Act, which is yet to commence, provides the AG with additional powers, such as the authority to directly recover losses from the person responsible in their personal capacity. Although the Act is an important attempt to reinforce accountability, it does raise concerns regarding the practical ability of the AG’s Office to pursue these civil claims, as well as potential duplication and conflict with the State Attorney’s Office.
Although the impact of corruption and maladministration is perhaps easier to monitor in relation to the State’s fulfilment of socio-economic rights – such as access to healthcare and education – rights in the Bill of Rights are interlinked and interdependent. The right to equality stands out in the discussion around the abuse of resource management. South Africa remains – according to the World Bank’s tracking of the Gini coefficient (a measure of inequality in society) – the most unequal society in the world. According to an Institute for Justice and Reconciliation (IJR) paper on social cohesion presented in 2018, which relied on evidence from the South African Reconciliation Barometer Survey: 2017, 46% of South Africans felt that inequality (with reference to the wealth gap) has worsened since 1994. However, as the IJR paper highlights, inequality is not only experienced in relation to economic outcomes, but also power relations and access to resources.
The State’s initiatives to provide equal access to opportunities should be much more nuanced. It is disturbing that according to the Human Rights Watch World Report 2019, almost 600 000 children with disabilities in South Africa remained out of school in 2018. This speaks directly to the multiple forms of discrimination experienced by children with disabilities. It calls for urgent, targeted, State intervention. In the field of employment equity, the South African Human Rights Commission (SAHRC) Equality Report 2017/18 recommended that the Employment Equity Act should be amended to target groups on the basis of need and taking into account social and economic indicators. Again, we see the need for a nuanced approach. However, the proposed Employment Equity Amendment Bill, 2018, which envisions the establishment of numerical targets in different work sectors at all levels for people from designated groups (i.e. Black South Africans, women and people with disabilities), is a far cry from targeting groups on the basis of socio-economic disparities.
The State’s fulfilment and protection of human rights are highly dependent on fighting corruption, restoring accountability and ensuring effective resource management. However, it also requires targeted State interventions to address true socio-economic disparities. Failing this, the gap in inequality will only widen.
It is important not only to celebrate human rights but to monitor the State’s fulfilment of these rights fiercely, to educate the public on their rights and to demand accountability. For more detail on the State’s fulfilment of human rights in 2018, please see the Centre’s Human Rights Report Card 2019, which assesses the State’s fulfilment of rights in the Bill of Rights.