Southern Africa Report
SAR, Vol 14 No 1, December 1998
IS GEAR ILLEGAL?
BY CAROLYN BASSETT
Carolyn Bassett is a PhD Candidate in the Department of Political Science at Toronto's York University. This article is based in part upon a taped transcript of the address given by South African Justice Minister Abdulah Omar and Human Rights Commission Chairperson Barney Pityana at Osgoode Hall Law School, Toronto, July 8 1998. Thanks to Ken Turiff, York University's media relations officer, for providing us with the tape.
Is GEAR illegal? This provocative question has seldom, if ever, been asked of the new South African government. Nonetheless, the bill of rights in the new South African constitution specifically enumerates social and economic rights. Many critics of the government's Growth, Employment and Redistribution economic restructuring strategy, GEAR, argue that it threatens the social and economic well-being of the poor majority.
GEAR's failure to improve basic human needs is unlikely to lead to a successful legal challenge. But the disjuncture between the aspirations of the constitution's bill of rights and the emerging socio-economic reality of post-apartheid South Africa raises some uncomfortable questions for the ANC-led government. These questions loom even as the ANC prepares for an almost-certain victory at the polls in a few months.
Interestingly, such issues were among those that were raised when South African Justice Minister Abdulah Omar and Human Rights Commission Chairperson Barney Pityana were guests of Toronto's Osgoode Hall Law School on July 8, 1998. There, they spoke about the new government's constitutional achievements and real world challenges to achieving the basic human rights that are necessary for an inclusive democracy.
"The struggle for a just order in South Africa has not yet ended," Omar remarked. "We achieved a historic success in 1994, removing the white minority regime from power through democratic elections. But that did not bring about any other change. It brought about no change in the police, in the army, in the civil service, in our courts, in the economy, in the structural imbalances in our society. And so 1994, historic though it was, has been for us only the starting point of a very difficult process of transformation."
Since the elections, the new government has begun to make some of these changes. It finalized a new constitution, and began to overhaul the justice system.
"We took over a South African state which was fragmented, legally and structurally, on racial and ethnic lines," Omar observed. "Our people did not enjoy equal citizenship. Under the dispensation where there were ten homelands, and one so-called Republic of South Africa, blacks were deprived of their South African citizenship, as you know, and declared to be citizens of one or another homeland. And so the establishment of one single equal citizenship is a big achievement of South Africa. Our constitutional slogan `One Law for One Nation' represents the importance which we accord to nation-building in our country."
The Department of Justice has now integrated the judicial system. The eleven ethnically and racially based departments of justice, each with different laws, personnel rules, financial management structures and practices were dismantled. A single department and unified structure has been created instead.
In addition to changing the institutions, the Department of Justice has attempted to transform the legal culture, to remove the racist biases of the apartheid era. "Building an independent judiciary, and establishing the rule of law are two very important components in the creation of a constitutional state," Omar commented. A lawyer who had practiced under the old regime, Omar noted that the judiciary was never independent, despite the independence and integrity of some individual officers. "The ethos of apartheid society, a society based on repression, seeped through the thinking of all South Africans. Whites believed that the legal system served the people, blacks believed that the legal system maintained the system of oppression. ... At the level of magistrate's courts [the lower level courts in South Africa], the lack of independence was most evident and racism was rampant."
Human rights culture
Building a human rights culture, Omar argued, is absolutely central to creating a new South Africa. Therefore, a bill of rights that incorporates civil and political rights, social and economic rights, environmental rights, cultural rights, women's rights and children's rights is prominent in the new constitution. Indeed, the values at the core of the entire constitution, Barney Pityana noted, "are the values of human dignity, the achievement of equality, and the advancement of human rights and freedoms."
But it is on this point that some uncomfortable questions emerge, some of them from Pityana and the Human Rights Commission itself.
Pityana noted that the bill of rights lists the rights to be achieved non-hierarchically. This implies that economic rights are as important as political and civil rights. Enumerating such rights also imposes duties upon government. "If we are to carry out our mandate with regard to social and economic rights, environmental rights, protecting women and children, and creating equality for the first time in our land, this will require a developmental state, a state that needs to be interventionist to the extent necessary to implement the values of the constitution," argued Omar.
Therein, precisely, lies the contradiction. If these rights are to mean anything, government policy must conform to them. But would GEAR pass the test?
Here, a difficulty for GEAR's critics, is that socio-economic and cultural rights do not appear to be legally enforceable in the same way that civil and political rights are. In line with the International Covenant on Social, Economic and Cultural Rights, on key socio-economic rights, the government is obliged merely "take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights."
When the constitution was drawn up, some legal experts argued that social, economic, cultural and environmental rights should be left off the list entirely, precisely because they cannot be legally enforced. But the constitutional negotiators rejected the suggestion. "We argued that the issue of rights is for people," said Omar, "and should include those matters which represent the aspirations of the poorest of the people of our country, those who have brought democracy to our land."
The Human Rights Commission
To attempt to give some meaning to the socio-economic and cultural rights enshrined in the constitution, provision was made for a series of statutory, independent institutions that would support constitutional democracy. The Human Rights Commission (HRC) is one of those institutions. Its role is to encourage the government to work to achieve the citizen rights outlined in the constitution.
Under the constitutional provisions, the HRC is empowered to request reports from government departments as to what measures were taken to realize rights to food, water, health care, housing, social security, education, and the environment. It also has the power to take steps to secure appropriate redress where human rights, including economic rights, have been violated. Pityana argued that "until the state of poverty of a large number of people in the country is addressed, for many, the rights in the bill of rights are going to be meaningless."
Could this extend to macro-economic policy itself? Or at most, could one merely hope to call the various service-providing government departments to task if they fail to develop effective programs to ameliorate the impact of neo-liberal restructuring, and instead perpetuate, perhaps even increase, the impoverishment created by colonialism and apartheid?
A controversial report, SPEAK out Against Poverty, was recently released by the HRC, the Gender Equity Commission and the South African NGO Coalition (SANGOCO). One of the report's central recommendations was to reverse the GEAR economic program, arguing that GEAR clearly had failed to create jobs. The report was based on the input of 10,000 people, with three months of hearings held throughout the country.
This conclusion raises two questions: whether GEAR can be challenged on the basis of its failure to deliver to the majority, and whether constitutional bodies like the Human Rights Commission and the Gender Equity Commission will continue to have the freedom to produce such reports. Despite the independence guaranteed to these bodies in the constitution, such concerns may not be too far fetched. The HRC is presently financed by the government through the budget of the Minister of Justice. This led Pityana to suggest that the government could restrict the scope or autonomy of the body through budgetary allocations. Some day, this could compromise the HRC's independence.
But it is the first question that is really tricky. "Surely the economic restructuring program appears destined to jeopardize the social and economic rights of poor South Africans, as has been the case in so many places where neo-liberal programs have spelled disaster for the poor," York University Professor John Saul asked the speakers.
Pityana noted that there is a lively debate in South Africa on the GEAR. He also suggested that the government accepts that poverty and human rights issues are as real as the pressures from the global economy. "Even though there is GEAR, from where I sit, I also see a real sensitivity to the needs of the people and to improve the basic standards of living. I am suggesting that there is an awareness, and a commitment to try to address the implications of poverty."
In fact, Mbeki's office and the Inter-Ministerial Committee for Poverty and Inequality recently produced the report Poverty and Inequality in South Africa. It argues that GEAR is a tool to address poverty and therefore economic rights, rather than a threat to them. Nonetheless, even this report recommended "that government reassess the use of monetary policy to contain consumption and inflation due to the negative impact that this appears to have had on growth, employment creation and access to home ownership." Short-term redistributive policies and asset transfers, the report argued, should occur before the medium-term growth strategies.
Justice Minister Omar restricted his comments on the GEAR to its budgetary dimensions, concluding that the economic strategy was a justifiable short-term measure. "We ... must curb borrowing and reduce the deficit for two reasons. ... [I]f we are able to continue reducing that deficit, then in the years to come, there will be more money available for social delivery, because we will be spending less money on servicing the debt. ... The second reason is that one of the major problems over the past four years has been the poor handling of finances."
Most departments have been unable to disburse all of their budgets, due to the incapacity and incompetence of government engendered during the apartheid era. Corruption, also an apartheid era vice, further hindered service delivery. These problems were particularly acute, Omar suggested, at the local level. Indeed, the SPEAK report and report produced by the Deputy Prime Minister's office echoed Omar's concerns about the capacity of local service delivery mechanisms and the legacy of the apartheid and homeland governments.
Limiting global context
The extent to which global economic norms and institutions would limit the "historically possible" of the South African transition has preoccupied the liberation and democratic movement since before the release of Nelson Mandela. "We are living and operating within an international environment which is not necessarily favourable towards the objective which we want to achieve," Omar commented. "Globalization is a fact, it's a reality. I am not making a virtue out of it. We have to work within the constraints of globalization."
"At times," remarked Pityana, "I wonder if there is enough of a critical understanding of the problems of globalization by the government."
Mbeki recently reflected upon some of these problems. "One of the results of the current international financial crisis has been that it has made it necessary and possible for most thinking people to question the prescriptions which have been proclaimed during the recent past as the cure for all economic ills, including those which affect our Continent [Africa]," he commented at a conference on the African Renaissance.
"We must therefore insert ourselves into the international debate about the issues of globalization and its impact on the lives of the people and make our voice heard about what we and the rest of the world should do actually to achieve the development which is a fundamental right of the masses of our people.
"Surely, there must be a way whereby the surpluses accumulated within the world economy become available also to the developing countries, including and especially the countries of Africa, as long-term capital helping us to address the socio-economic development objectives. ... Accordingly, we must be in the forefront in challenging the notion of `the market' as the modern God, a supernatural phenomenon to whose dictates everything human must bow in a spirit of powerlessness."
Does this signal a change of heart on the part of Mbeki and the next ANC-led government? It appears unlikely that the neo-liberal inspired economic strategy will be abandoned in substance, although politicians may be reluctant to defend it as rigorously now that the ANC is gearing up for an election. Sentiments like Mbeki's comment that "Interventions have to be made into this market by other human beings in pursuit of the measurable objectives of ending poverty and underdevelopment" may go a long way to smoothing relations with former allies over the next six months.
The tensions highlighted by Saul, Pityana, and the SPEAK report will remain, however, so long as attracting foreign investment remains the main policy priority. And a careful reading of Mbeki's speech makes it clear that this is the over-riding priority: "we have to attract into the African economy the significant volumes of capital without which the development we speak of will not happen."
What a terrible paradox it would be if in this neo-liberal era, the attempt to attract the foreign investment believed to be necessary to address the legacy of apartheid required perpetuating, and perhaps even intensifying, the substantive inequality of South Africans.
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