South Africa is not yet a free and equal state

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Over the last two decades, we’ve endured a myriad of cataclysmic junctures that have slowly eroded the legitimacy of the state and stripped away any hope the nation had of a “new dawn”. These include, the Marikana tragedy, the Life Esidimeni scandal, state capture and the 2021 July unrest. Collectively, these form part of a continuum revealing the array of human rights violations that have persisted in spite of South Africa’s constitutional democracy. 

Chapter 1, section 1(C) of the Constitution stipulates that the state is founded on the “supremacy of the Constitution and the rule of law”. This means that the law must underpin the actions of government and society. It also means that human rights must be adhered to, all people must be deemed equal before the law, and legislation must be developed by legitimate, democratic bodies. These values are primarily intended to atone for our oppressive past and ensure the return of people’s dignity and usher in a free and fair South Africa.  

The first democratic elections in South Africa, which took place in 1994, brought with them a great degree of hope as to how the state was going to handle its affairs. What unfolded after these elections, however, is what some deem as restrained and sluggish efforts in rectifying the racial and systemic injustices of the past.  As a result, democratic South Africa began taking shape with the large majority of people confined to the periphery of that democracy, which served to entrench indignity and intergenerational poverty among the masses.  

Democratic South Africa is still burdened by the legacies of apartheid. This, coupled with the current dispensation’s increasing austerity and the looting of public funds by government officials, politicians and their allies in the private sector, culminated in the 2021 July insurrection. 

While the arrest of former president Jacob Zuma served as the immediate catalyst for the civil unrest, the conditions conducive to inciting public unrest already existed, in which extreme poverty, acute food insecurity, joblessness, and a spike in the cost of living catapulted the violence and ransacking that unfolded predominantly in parts of KwaZulu-Natal and Gauteng over a period of two weeks.

The report developed by Dr Sandy Africa together with advocate Mojanku Gumbi and the late Silumko Sokupa detailed the ways in which the unrest was exacerbated by the unresponsiveness of state security, the current political landscape and an impoverished population that has been deprived of accessing opportunities and wealth for far too long. 

Earlier this year, the Nelson Mandela Foundation in partnership with the Hanns Seidel Foundation convened a dialogue on the Rule of Law & Constitutionalism. The keynote speaker was the deputy national director of public prosecutions at the National Prosecuting Authority (NPA), advocate Anton du Plessis, and the Nelson Mandela Foundation’s chief executive Sello Hatang contributed a reflection on rule of law issues in KwaZulu-Natal. 

An anecdote shared by Hatang on a letter Madiba had written to his family while in prison comes to mind — it spoke of hope, how it had carried him through and that his family too should hold on to hope, “a powerful weapon, even when all else is lost”. 

As comforting as it may have been at the time, I am also reminded of how fatigued and profoundly disappointed we are as a people. That even after all was lost, and we had reconciled the irreconcilable, seemingly arriving  in the land of milk and honey, we still find ourselves with a ravaged health sector, unerringly up in flames, a state that allows for homelessness to be criminalised, and once again a head of state accused of  criminality and lawlessness. 

Surely referring to South Africa as a free and equal state when the fundamental human rights of its people are repeatedly infringed is delusional and deceptive?  The state is no longer deemed legitimate by some, and with reason. It is thus clear that we need to bridge the gap between principles stipulated in the Constitution and the pain we are subjected to in our everyday lives. 

Speakers at the dialogue emphasised that over and above reprioritising racial injustice and the proper implementation of the rule of law and the Constitution we can find comfort in state institutions like the NPA and pockets of excellence found in the public service  and civil society.  Admittedly these recommendations could provide a blueprint we could employ to rebuild but with the profound sense of distrust in our state and a deeply despondent society, new wounds have been inflicted and old scars have been reopened. 

More than anything it feels like we are all witnessing the democratic state’s requiem and maybe we just need a moment to pick up the pieces before we start working toward yet another “new dawn”.  

Principles that have underpinned our ideals of freedom and democracy have now become evanescent. We’ve witnessed the republic’s rapture far too many times to keep placing our hope in the ghosts of our late freedom fighters. The current state of affairs compels us to anchor our belief in concepts that will supersede us all. 

Concepts such as the rule of law and constitutionalism may still be a reasonable solution to the plethora of intergenerational crises we’ve endured. However, we would then be remiss in acknowledging the rife sociopolitical and economic injustices that have prospered within this post-apartheid social compact. 

Unlike the sequence of events in our past, the saviours do not form part of a political party; instead, we find tangible slivers of hope in lone activists and civil society organisations and small pockets of excellence demonstrated by public servants. Work aimed to upend the status quo, although imperative, seems never quite enough to secure sustainable reform,or jiki zinto. 

When will we learn that failed states are not simply resuscitated by erecting R22-million flagpoles or renaming airports? They are restored by materialising our laws and policies in the lives of all South Africans, especially those that have been long forgotten and discarded by the constitutional democracy. 

Samantha Mashapa is dialogue and advocacy coordinator at the Nelson Mandela Foundation and holds a bachelor’s degree in politics and international relations from the University of the Witwatersrand. 

The views expressed are those of the author and do not reflect the official policy or position of the Mail & Guardian.