By Marlese von Broembsen and Dennis Davis · 28 Oct 2008
Early in its new democracy, South Africa successfully rose to the challenge of ensuring political justice. It developed a progressive and ground-breaking constitution enshrining rights for all of its citizens.
Much attention, debate and litigation has taken place around civil and political rights, and these have been further interpreted and secured. However, the expectations of many of the country’s poor and marginalised for a better life have been largely unmet, and the constitutional protections in this regard largely unrealised. While much has been achieved in terms of the provision of housing, electricity and clean water, many South Africans continue to face increasing social inequality and worsening conditions.
Amongst poor communities, there is a growing disillusionment and frustration at being treated unjustly: crime and a lack of delivery in critical areas such as education, housing and health provision are just some of the factors fuelling this discontent. Now, fourteen years into this democracy, the new challenge is the achievement of social justice as set out in our constitution.
The recent xenophobic attacks in our country were sparked in part by increasing levels of poverty and despair in poor communities. The attacks have brought into focus the urgent need to address issues around housing, poverty and social security and thereby rebuild the possibility of meaningful community.
The way in which South Africa now proceeds will be closely scrutinised. A heavy burden falls on government at all levels to rise to the challenge. The seismic political changes of recent weeks, notwithstanding, the fundamental challenge that needs addressing remains: how we as a nation can close the gap between the promise of social justice in our constitution, and its delivery in lived reality for all citizens. That question needs an answer not only from government but also from civil society.
To date, most interventions to address poverty have been state-centred and top-down. Standing alone, these have proved to be largely unsuccessful in economic upliftment, and have not brought the promised constitutional rights to life for many of the poorest and most marginalised.
Professor Stephen Golub, an international trade and finance expert, has argued in his research for the Democracy and Rule of Law Project at the Carnegie Endowment, that many developing countries have laws benefiting the poor on paper, but not in practice. The transition from paper to reality can only take place if the poor or their allies advocate for enforcement of legislation.
He explains that top-down interventions emphasise state institutions as vehicles for promoting personal safety, security of property and access to justice for the poor. However, this approach can sometimes incorrectly assume what the real needs of the poor are. In addition, where there are dysfunctional legal systems, these legal systems can in fact perpetuate poverty rather than be an agent of alleviation.
There are numerous examples illustrating how a top-down only approach can have unintended consequences.
A good example is the manner in which financial support for those with HIV/AIDS on ARV treatment has been conceptualised in South Africa. Currently, in order to qualify for a temporary disability grant, the HIV positive person applying for the grant should have a CD4 count of less than 200 and this should be stated in a medical report/certificate. Research conducted by UCT and which appeared in the Journal of Social Policy, highlights that the ARV roll-out offers people the chance of restored health, but at the cost of losing the disability grant, as once their CD4 count rises above 200, they are deemed well enough to work. Many will not be able to find work, and hence face a trade-off between health and income. Anecdotal evidence by community workers shows that this is indeed the case, with some patients sabotaging their recovery to keep the grant, by not taking medication.
What has clearly emerged from an analysis of poverty reduction policies to date is that development initiatives must be complemented by a bottom-up approach. This approach focuses on engaging with and developing solutions around the experiences and reality of those marginalised.
Golub argues: "An alternative, more balanced approach often is preferable: legal empowerment – the use of legal services and related development activities to increase disadvantaged populations’ control over their lives. This alternative paradigm, a manifestation of community-driven and rights-based development, is grounded in grassroots needs and activities but can translate community-level work into impact on national laws and institutions."
Numerous studies by academics and development organisations highlight the importance of building the capacities, organisation and political influence of civil society which seek to improve the lives of disadvantaged. To translate the power and protection of the Constitution to people who need it most, requires skilled people; not only those with legal expertise, but also those who are able to grasp the complex and evolving challenges, needs and preferences of the poor, and to develop appropriate and effective strategies in line with these.
This has significant ramifications for legal training. If we as South Africans seek to make our constitution a living document, rather than an aspirational goal, we need to nurture and develop a new generation of lawyers who are able to analyse not only from a legal perspective, but also from economic, political, gender and cultural perspectives.
Conversely, development practitioners in other fields could benefit from acquiring legal skills, particularly an understanding of the role that law can and should play in transforming our society. Social justice advocates have discovered the important role the law can play in securing rights and challenging power relations. However, these legal routes need to be made more accessible to the poor; further, the enforcement of legal remedies needs to be closely monitored and, if necessary, enforced.
The development and training of experts with the appropriate skills to achieve social justice will require a consistent and concerted effort from tertiary education institutions. It will be crucial to encourage and develop innovative inter-disciplinary programmes to this end.
Golub stresses the need to engage law students and practising attorneys and develop and teach the skills and perspective of development lawyering. These skills include the ability to simultaneously teach and learn from the poor; how to position them as partners rather than subservient clients; how to analyse problems politically, culturally, and from a gender perspective, as opposed to a pure legal perspective; and how lawyers can be activists for social change. On the other hand, including human rights and legal empowerment approaches in the training of professionals in other areas of development, could expand their capacities to integrate law and development in their work.
There are a number of universities that have led the way in integrating these competencies in their programmes. The Philippines, Bangladesh and certain Latin American nations have successfully created these inter-disciplinary programmes. The University of Cape Town (UCT) will shortly join this group through offering a Masters in Social Justice. This post-graduate programme commences in February 2009. It is designed for both legal and non-legal graduates, and is the first training to combine law, social justice and development to be launched by a South African university.
Training future experts in this interdisciplinary way aims to empower them with the necessary multidimensional knowledge and skills to deal with the complexity of challenges faced by communities. This will be a contribution to ensuring that social justice can be developed from the ground up, and to the empowerment of poor communities to making the constitution work for them.
Empowering people to enrich the political discourse is imperative in South Africa. It must begin with tangible steps to ensure that justice really is for all, and not only the elite.
By Marlese von Broembsen and Dennis Davis. von Broemson is the convenor of the new Masters in Social Justice at UCT. She can be contacted at [email protected] Davis is a Judge in the Cape High Court and a lecturer on the programme. Applications close on November 30.
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