South Africa's Struggle for Human Rights: The History of Rights in South Africa

1. Introduction

1 Introduction South Africa’s transition to a post-apartheid democracy, so often referred to as a ‘miracle’, is widely celebrated as a triumph for global human rights. The country’s new Constitution, its Truth and Reconciliation Commission, and the moral authority of Nelson Mandela stand as exemplary proof of this achievement. Yet, less than a generation after the achievement of freedom, the status of human rights in South Africa is uncertain. In government, the ANC has displayed an inconsistent attitude to the protection, let alone advancement, of hard-won freedoms and rights, and it is not at all clear that a broader civic and political consciousness of the importance of rights is rooting itself more widely in popular culture. South Africa’s final Constitution was intended to aid in the establishment of a post-apartheid society based on democratic values, social justice and fundamental human rights. In doing so, it was 9 10 designed not only to defend‘natural rights’and restrict the powers of the state over the individual, but also to play a role in building an open, democratic society, holding the government to account where necessary. The Constitutional Court’s senior judges have stressed the need for the Constitution to be ‘interpreted generously to achieve its purposes’, which include social transformation.1 Realisation of these ideals depends on the state’s active engagement in expanding the domain of rights for the collective social well-being of the people. Yet, a government which came to power proclaiming its commitment to ‘second-generation’ social rights frequently finds itself blocking their active realisation. In power, leading government figures have shown increasing lack of regard for the independence of the judiciary, and high-level corruption suggests that the well-being of the elite prevails over the wider interests of the people. In the view of Arthur Chaskalson, first President of the country’s Constitutional Court and Chief Justice until 2005, corruption and the ‘fragility of rights’ are two linked dangers which have to be confronted. A similar point is made by the writer and public intellectual Njabulo Ndebele, speaking in 2011: ‘The greatest threat we face is the impact on the public mind of the emergent, unconstitutional culture of concealment.’2 11 South Africa offers a unique case study for historians of human rights. Its extended colonial history invites us to consider the development of several competing rights ‘regimes’ – liberal, Afrikaner, and African nationalist – whose political salience can be broadly correlated with distinct phases of political power.3 It is indeed hard to think of any other colonised society where distinct strands of rights discourse have been conjoined in this manner. Most histories of human rights are located at the international level. To be able to locate these different rights traditions in the national narratives of a single society presents particular challenges. Although the struggles against British imperialism, Afrikaner nationalism and white supremacy were configured broadly to achieve ‘rights’ (or to redress ‘wrongs’), the phrase ‘human rights’ seldom features in either the texts or the indexes of key works of history. This immediately raises the question about the status of rights in South African history. The premise here is that struggles over rights in South Africa have helped to shape its emergence as a nation-state over a long period, though there is no suggestion that the objective of securing rights has been consistent or that rights claims have always been to the fore. In exploring how deeply entrenched rights thinking is in South African political thought, this book makes two claims 12 which, on the surface, may seem contradictory: first, that a legacy of rights thinking – however episodic, fragmented or attenuated – can usefully be traced back over two centuries in South Africa; and second, that the embrace of human rights discourse by South Africans in the post-1990 era is, notwithstanding the former claim, surprising. The term ‘human rights’ is difficult to track with precision, in part because the formulation is anachronistic and has come to acquire a much more expanded meaning in recent years, but also because its usage is unstable and not conducive to rigorous definition. The domain of rights overlaps with concepts of citizenship, constitutionalism, natural rights, civil rights, minority rights and the‘rule of law’.4 It is coextensive with a long tradition of theological thought around human dignity and the integrity of the person. And it is also interwoven with claims to...