Constitutionalism as a Barrier to the Resolution of Widespread Community Rebellions in South Africa

Abstract

South Africa's 1996 Constitution is widely lauded as the world's most liberal Constitution, yet the document was marred by its context: democratisation alongside the accumulation of excessive corporate power and the adoption of neoliberal public policy. The 1990s transition period generated, in turn, even worse inequality, poverty, unemployment and uneven development than during apartheid. The Constitution thus became a distraction in vital battles by poor and working people, including the first use of its celebrated socio-economic rights for unsuccessful interventions in healthcare (kidney dialysis) (1997), housing (2000) and water (2009). On the one hand, defensive courtroom postures were maintained with the document's help (e.g. anti-eviction injunctions) and occasional offensive victories were registered (e.g. AIDS medicines for pregnant women to halt HIV transmission to babies). But the overall impact was to direct those entering a legal alleyway with great expectations, into a cul-de-sac where satisfactory exit was blocked by property rights. The only way out has been much more explicit direct action, instead of community activists wasting further time, effort, resources and strategic credibility promoting the Constitution.

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