Fatal Flaws in South Africa’s Constitution, Uncovered through Socio-Economic, Environmental and Intergenerational Rights Activism

Abstract

South Africa’s 1996 Constitution is widely lauded as the world’s most liberal, yet it was marred by its context: democratisation that occurred alongside the accumulation of excessive corporate power and the adoption of neoliberal public policy. The 1990s transition period generated, in turn, even worse inequality, poverty, unemployment and uneven development than during apartheid. The Constitution thus became a distraction from vital battles by poor and working-class people, including the first use of its celebrated socio-economic rights in unsuccessful interventions in healthcare (kidney dialysis in 1997), housing (in 2000), and water (in 2009). On the one hand, defensive courtroom postures were maintained with the document’s help (e.g. anti-eviction injunctions) and occasional offensive victories were registered (e.g. AIDS medicines for pregnant women to halt HIV transmission to babies). But the overall impact was to direct those entering a legal alleyway, with great expectations, into a cul-de-sac where a satisfactory exit was blocked by property rights. The disgust with the Constitution’s socio-economic rights clauses often expressed by activists amounts to a charge of tokenism. The only way out has been much more explicit direct action, rather than community activists wasting further time, effort, resources, and strategic credibility by promoting the Constitution.