Monday 17 June

Fourteen years ago, our freely elected representatives adopted the Constitution – in part – to “free the potential of each person”, “[h]eal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”. So it is strange that Jimmy Manyi – president of the Black Management Forum (BMF) and Director-General of Labour – asks why it seems “that the Constitution does not support the transformation agenda of this country”. On the contrary, transformation lies at the heart of the constitution, and is its raison d’être.

It is this insight that forms the basis for the launch today [Friday] of SECTION27, a public interest organisation that seeks to influence, develop and use the law to protect, promote and advance human rights. The name is drawn from our Constitution precisely because we view it as central to the transformation of South Africa into a “democratic and open society in which government is based on the will of the people and every citizen is equally protected by law.”

For 17 years the Aids Law Project (ALP) has used legal research, litigation and human rights advocacy to push government and the private sector to recognise the need for a rights-based response to HIV/AIDS and to develop appropriate plans to prevent and treat HIV infection. The success of that approach informs the creation of SECTION27, which will incorporate the ALP. In combining community activism and law, SECTION27 will retain a strong focus on HIV and health care building on the role of the ALP in creating a comprehensive rights-based legal framework for HIV. It does not mean that SECTION 27 will “mainstream AIDS into obscurity. Instead, we will continue to place the lives of people with HIV at the centre of our work on health access.

But our transformation agenda extends to include socio-economic rights more broadly and the legal and political conditions necessary for sustaining rights under the rule of law. It is an urgent job.

Speaking at the BMF’s Constitutional Symposium last week, Manyi expanded on his view of the disconnect between the Constitution and transformation: “We are yet to see government taking issues of a transformational nature to court and winning them”, he opined. “Every time government takes a case of a transformational nature it is sure to lose that case, and as it does so the Constitution is cited.”

President Zuma, however, struck a different note. Delivering the keynote address at the same event, he talked about how the Constitution “furthers the objectives of socio-economic transformation”. In his view, the Constitution “is a sacred document that guides our constitutional democracy.”

The President spoke about the need “to further enhance the enjoyment of the rights enshrined in the Constitution”. He recognised the role played by the courts, noting that “we should not be rigid in our definition of the doctrine of the separation of powers … [as] [t]his would limit the potential intervention by the judiciary to protect socio-economic rights.”

Despite the positive thrust of the President’s speech, however, he too referred to the Constitution as a tool that can be used to block transformation. To him, those who “abuse our progressive Constitution to maintain glaring inequalities” show no respect for it.

We too are concerned when the Constitution is invoked to undermine progressive change. We too have experienced how the abuse of court processes frustrates the attainment of social justice. But in our view, it is not just those sitting in opposition or wielding private power who disrespect the Constitution from time to time. In recent years, particularly under Thabo Mbeki, government itself was guilty of the conduct the President ascribes to others; all too often the executive has tried to hide behind the separation of powers doctrine in urging the judiciary to adopt a regressive interpretation of the Constitution.

We are fully aware that those with vested interests often invoke our supreme law as they seek – at the expense of the poor – to entrench their privilege. They do so because the extent to which the Constitution imposes obligations on private parties to realise its vision remains one of the least-addressed aspects of our new legal order.

But it is wrong to dismiss as abusive the resort to law by those with whom we differ politically. What we must do, as President Zuma suggests, is to ensure that the poor have access to justice – that “the central beneficiaries of this Constitution … [are] the workers and the poor who had no access to such rights before.” In part, this involves the provision of legal services to those in need. But increasingly it involves communities engaging the state on how best to create a just society; strengthening participatory democracy at local, provincial and national spheres; and ensuring open and accountable government that both understands and respects the Constitution.

SECTION27 will focus on helping the poor and marginalised to achieve these goals. South Africa has a long tradition of using the law for progressive social change. We will continue to engage constructively with government about its legal duties. But, where necessary we will make use of litigation and other forms of legal action against those who wield public or private power.

The durability and relevance of the Constitution depends on the extent to which it is seen to improve the lives of the poor and most marginalised of our country. The ability to do this depends on ensuring that government respects the rule of law and its legal duties, and that private power understands that it too has positive constitutional obligations.

Jonathan Berger, Adila Hassim and Mark Heywood