Freedom must be defended by all of us

26 April 2023

As we mark 29 years since our country’s first non-racial election on 27 April 1994, it is appropriate to consider the degree to which “freedom” is being enjoyed in practice. Since 1994, under our new constitutional accord, South Africa has remained a functioning democracy with regular elections and a multiparty system of democratic government. It has continued to respect the supremacy of the Constitution and the rule of law in that:

The courts retained their independence and handed down judgments that struck down unconstitutional actions and legislation;

The ANC Government, for the most part, continued to abide by and give effect to the judgments of the courts, even when they went against its wishes;

The Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector - including Organs of State (the Zondo Commission) - provided detailed information on the extent, depth and cost of state capture and rampant corruption;

The National Prosecuting Authority (NPA) instituted prosecutions of prominent people exposed by the Zondo Commission; and

Investigative journalists remained able to report and expose maladministration and corruption.

In principle, South Africa continued to respect the foundational values of human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism and non-sexism. In practice, it failed to do so to the degree envisaged by the preamble of the Constitution, which is to:

“Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; improve the quality of life of all citizens and free the potential of each person; and, build a united and democratic South Africa.”

The FW de Klerk Foundation’s Human Rights Report Card for 2022, which gauges the realisation and promotion of constitutional guaranteed human rights in South Africa, noted with concern the following ten principal threats:

The unsustainable conditions of poverty, inequality, unemployment, loadshedding, violent crime and declining social, educational and health services that constitute the lived daily experience of a majority of South Africans.

Any continuation of the severe and arbitrary restrictions of a wide range of basic rights imposed under the Disaster Management Act to deal with the COVID crisis or the declaration of any similar national disaster.

Any repetition of the collapse of law and order experienced in KwaZulu-Natal during July 2021.

The negative impact on a wide range of human rights caused by the failure of service delivery at all levels of government – and particularly the consequences of loadshedding.

The failure of the South African Government to take decisive action to combat state capture and corruption at all levels of government and state-owned enterprises.

The failure of the state to protect lives, bodily integrity and property evidenced by unacceptable rape and robbery statistics and a disturbing increase in the number of murders.

The undermining of property rights with the adoption of measures in terms of the Expropriation Bill, the Land Courts Bill and the Unlawful Entering on Premises Bill.

The serious erosion of non-racialism through the implementation of 132 race-based laws, including the Employment Equity Amendment Bill and the Legal Sector Code, and the failure of the state to prohibit incendiary racist hate speech by prominent political leaders.

The erosion of the right to freedom of expression posed by the Prevention and Combatting of Hate Crimes and Hate Speech Bill.

The continued erosion of language rights resulting from the implementation of the Basic Education Laws Amendment Bill; the failure to implement the Use of Official Languages Act and the erosion of the right to education in the language of choice at all levels of public education.

South Africans can be proud to have a Constitution often regarded as one of the best in the world. In its current form, the South African Constitution provides all the essential ingredients, opportunities and legal provisions required to make the vision of a united, prosperous and free society- as laid out in its preamble- a reality. Instead, the challenge to promote and achieve this vision lies not in the Constitution itself, but in the implementation of inappropriate and discriminatory policies and ineffective service delivery.

This Freedom Day, as we commemorate all those who fought and worked to establish our constitutional democracy, we should recommit ourselves to building a society that promotes the values and the vision of our Constitution, not only in principle but also in practice.

As South Africans, we must recognise that Freedom is not an end in and of itself, nor a good that can be taken for granted. Freedom needs to be constantly guarded, nurtured and defended by all of us. We must be aware that Freedom can only be enjoyed in practice by those whose basic needs have been met. As aptly put by President Cyril Ramaphosa, commemorating the day last year, “We have proven time and time again that we can rise above our differences; that we can come out strong in the midst of adversity. Let us take responsibility, one and all, to build the South Africa promised by our Constitution.”

We should redouble our efforts to build a society based on human dignity, the achievement of equality and the enjoyment of human rights and freedoms. We should insist on non-racialism and non-sexism. We should do everything we can to preserve our multiparty system of government based on accountability, responsiveness and openness. And most importantly, we should ensure that the Constitution will remain supreme and that everyone in our society – including Government - will continue to be subject to the rule of law.

To learn more about the degree to which rights and freedoms in the Bill of Rights are being enjoyed in practice, read our full 2022 Human Rights Report Card or watch the summary presentation.

Issued by FW de Klerk Foundation, 26 April 2023