The government has failed to guarantee the Bill of Rights

Note to editors: The following speech was delivered in Parliament today by the DA’s Shadow Minister of Correctional Services, James Selfe MP, during the debate on 20 years of the Constitution.
It was great to be a Member of Parliament in 1994, and to be a member of the Constitutional Committee that was shaping our country’s constitution. It was a great privilege and honour to serve in the same committees as people like Kader Asmal, Brigitte Mabandla, Tony Leon, Musa Zondi, Richard Sizani, Colin Eglin, Mohammed Bhabha (even the excitable Salie Manie) and many others.
One felt, at that time, that we were making history; that the huge yoke of apartheid had been lifted from our shoulders; that the future was full of promise. One central idea animated our discussions: that we were never, ever going to allow the abuse of power, the systematic trampling of human rights, the torture and killings, the secrecy and lack of accountability that had characterised the apartheid state, to occur again in the democratic South Africa.
It is thus natural that the Bill of Rights should be the heart of the Constitution. The Bill of Rights encompasses not only traditional rights, such as the right to equality; dignity; life; freedom; privacy; freedom of religion, belief and opinion; but also second and third generation rights, such as to basic education; to a clean environment; and to access to adequate housing, health care, food, water and social security. Bearing in mind the abuse of the past, the Bill of Rights was careful to guarantee the right of arrested and detained persons and provided that conditions of detention be “consistent with human dignity, including… exercise and the provision… of adequate accommodation, nutrition, reading material and medical treatment”.
As we approach Human Rights Day, we must ask whether South Africans enjoy these rights. The answer must be an overwhelming no. Anyone who has been to a mud school with a pit latrine will know that some South Africans are denied the right to basic education and to dignity. Anyone who has stood in a queue at a clinic and gone home, still sick, and without having seen a doctor or sister, will know that access to health care services needs vast improvement. And anyone who has visited a prison will know that the conditions, particularly for remand detainees, do not remotely conform with what the Bill of Rights prescribes.
The brutal fact is that this government has failed to guarantee the Bill of Rights. Instead of getting decent and efficient services they deserve and which are guaranteed by the Constitution, our people get wastage, corruption and nepotism. It is particularly appropriate that this debate takes place today, when 17.1 million of the poorest and most vulnerable South Africans are having to access the Constitutional Court to guarantee their right to social security, because someone, somewhere has got a kick-back.
The reality is that this government is arrogant and uncaring. It does not care about the Rule of Law, as is so clearly illustrated by the contemptuous way the Minister of Social Development has treated the directions of the Constitutional Court. It treats criticism with scorn, and invariably resorts to the race card.
But the real fault lies with us, the Members of Parliament. MPs – and particularly honourable members from the ANC – spectacularly fail to hold the Executive to account, as was so graphically illustrated by yesterday’s debate on the SASSA crisis. In many respects, the Executive is as unaccountable, as arrogant and as secretive as the apartheid government.
On 7 May 1996, I said the following in a debate of the Constitutional Assembly:
“In this constitution, we have created oversight mechanisms and we have put in place checks and balances. However, these constitutional mechanisms are only as effective as the will to make them succeed and that depends on the collective commitment of parliamentarians to transparency and accountability, not only now when the abuses of the past are fresh in our memories, but also in the future.”
As MPs, we do not have that “collective commitment… to transparency and accountability”, which is why people have to turn to the Courts to seek their rights. The Courts don’t like the new job they have to do because we don’t do ours, but they do it very well – whether it was in respect of Nkandla, the SABC, the police in Parliament or Menzi Simelane. I trust that they will do the same about Minister Dlamini and SASSA.
On every single one of these issues, the President and Ministers have evaded accountability by refusing to answer questions or to attend committees. And the presiding officers have taken no steps to demand this accountability.
So unless and until we recommit ourselves to carrying out our responsibilities to make Human Rights real, we will be failing those who struggled and died for our Constitution.