Service delivery, The courts are now part of the problem by Nqobizitha Mlilo M
David Thomson in, Europe Since Napoleon records a fascinating episode of European history between 1871 and 1957. He argues that in this period of the 1870s, “every European government… regarded it as one of its first duties to provide, or see that others provided a system of public education….” In Britain, he observes, it “…opened fresh doors of opportunity to children of ability regardless of their parents’ wealth.” So was it too in Prussia in 1872, Switzerland in 1874, Italy in 1877, Netherlands in 1878 and Belgium in 1879. Howsoever we may point to the sub terrain and open imperial inclinations of countries of the west, which are not denied; it is unpaid chauvinism to deny the superiority of modern day European system of education compared to our own. For the avoidance of doubt, to concede to the fact that Europe may be better than Africa in this respect makes one no less a Pan-Africanist. If we are to accept the historical narrative David Thomson has offered on the progression of European society, the superiority of their education system can only be because the countries in question, through the deliberate actions of their governments, invested in the social needs of their people. Accepting the weaknesses and short-comings of the European model, David Thomson forcefully makes the point that it is “… the persistence and universality of the great adventure (in education)…” to which we must pay attention. It was an “objective upon which”, David Thomson further informs us, “… different parties could agree, however violently they might differ about how it should be attained….” The inescapable truth which bears much emphasis is that the state was heavily involved. Contextually, this was long before the emergence and ingraining of literature on human rights in general and on socio-economic rights in particular, at least, as we know them today. The South African Constitutional Court on Thursday 19 November 2009 handed down a disappointing judgment in the case of Johnson Matotoba and others v Ekurhuleni Metropolitan Council. It is the case of the Herry Gwala informal settlements. The irony that the settlement is named after one of South Africa’s most gifted liberation movement intellectuals, must force many proud sons and daughters of South Africa’s struggle against apartheid to shiver in their graves. They surely did not, in real terms, fight to get a new flag, but for social justice. That such matters of social justice are fought over in the realm of legality until they reach the Constitutional Court, only to get a passive judiciary is a cause for reflection. As the court correctly summarized, “this case is about sanitation and lighting. …, it is about the quest of a community in an informal settlement to have toilets … (and) high-mast lighting….” These are what have been termed socio-economic rights. In general, these are vulnerable poverty stricken people living on the edge of society, a society which has stripped them of their sense of dignity. Depressingly, all this is happening under the promise of a Constitution hailed across the globe as progressive and successive elections where promises of provision of basics are made by those that claim to be representing people and the poor in particular. This is a classical case of today’s conjectural buzz phase; ‘failed service delivery,’ this time by the courts. It seems the failure in service delivery has been laid only on the door of the executive, but surely with the manner the courts have progressed thus far, service delivery woes are in part due to a passive bench in particular and a pernicious judicial system in general. It is the men and women in robes who should now stand in the dock and answer why they condemn millions to poverty and indignation. The continuous rhetoric about service delivery will remain to the extent the courts continue, in all kinds of sophistry, to side step handing down judgments that compel the state to make available basic services. That the case of the Harry Gwala informal settlement residents seems to have, in part, been bundled up by their legal representatives does not exonerate the court. It is and should be the duty of a court committed to human rights, especially of the vulnerable, to address the real issues at hand, whether or not they have been properly raised and or articulated by the legal representatives. The courts ought not to forget that it is the residents, and such similarly situated persons, who are at the core of the issues before them and not the legal representatives, who, almost without doubt, will, at the end of the day’s theatre, retire to a well resourced place they call home, while the residents continue to be pounded by squalor. Clearly the court had another opportunity after the Soobramoney case in 1997, Grootboom case in 2000, and Treatment Action Campaign case 2002, Japhta case in 2004, and just the other month (2009) in the Mazimbuko case to reverse its stubborn refusal to set, or agree to the need to set a core minimum obligation regime on the government on socio-economic rights for, in the main, the poor people of South Africa. Instead the court side stepped the issue. Not only did the court side step the issue, it gave the Gauteng Provincial government 14 months to decide what to do with the Harry Gwala informal settlement. This is after the last three years in which the Gauteng Provincial government had failed to make a decision on what to do with the settlement. What justifies such a long time is incomprehensible. It will mean that in total the Gauteng Provincial government will have 4 years 2 months to decide. How about the lives of these residents? All this is happening within the context of an agitated population demanding the speeding up of the provision of basic services. So much about building a caring society. There can be no future for any society, much less for South Africa given its past, unless the basic foundation rooted in the provision of basic services by the state is supported by all and actively acted upon by government and strictly monitored by an activist judiciary. It is not enough for the court to simply acknowledge, as the court did, that it is “understandable” for matters of socio-economic rights to be brought before the court given that “our history is one of land dispossession, institutionalized discrimination and systemic deprivation. The … differences between the wealthy and the poor are vast.” The submission is that it is the duty and responsibility of the court in a constitutional democracy committed to human rights to cut through the political rhetoric and legalism to ensure that there is a practical realization of the promises of the constitution on socio-economic rights; water, sanitation, housing, education, electricity for the poor. Objective constitutional right vindication is central to a constitutional democracy. How hard can that be if all our lenses are lenses of social justice and collective good? What is it? Is it the hangover of the fermented waters of the Washington Consensus which have literally held us captive as a people? One wonders how it then came to be that Africa had to be forced to accept the so-called Washington Consensus, wherein the role of the state, in the provision of basic social services was, to put it politely, greatly compromised, on the advice of the very same powers which involved the state significantly in building the foundations of a sustainable future of their own countries. Unless we reject the Washington Consensus, its offshoots and tributaries and take lessons from the very same Europe in the 1870s, we are going nowhere. Socio-economic rights like water and sanitation which the residents of Harry Gwala were and are asking for are enabling rights which capacitate the poor to take charge of their own lives and regain their dignity. Without the provision of these services, it is hard to imagine how the poor can have ‘a better life’ and how ultimately there can be ‘a better life for all.’ The courts need to play a constructive role rather than be obstructionist. These rights are real and must be made real. This was and is a clear case of the existence of an objective right pristinely side stepped much to the chagrin of the residents of Harry Gwala and all similarly situated persons. Next time we speak to the issue of service delivery, the courts, and not only the executive, will have to come into the firing line and account as well. Former President Thabo Mbeki warned at some point that the ‘poor will break the gates.’ The question is, how long should the poor wait? (with love from Zimbabwe: long live people to people solidarity) -- For more information please call MDC (Zimbabwe) Hon. Mr. Nelson Chamisa 0912940489 National Spokesperson or Mr. Luke Tamborinyoka 0912104416 or [email protected] or Nqobizitha Mlilo (Zimbabwe) 00263913294724 or (South Africa) 0835274650 or 0731539555 or [email protected] or [email protected] "At each point in our proud history we have looked forward not backwards, we have stood for hope not fear, we have believed in love not hate, and we have never lost touch with our democratic values or sight of our democratic goals." ~ His Execellency, Prime Minister of the Republic of Zimbabwe, Mr Morgan Richard Tsvangirai -- You are subscribed. This footer can help you. Please POST your comments to [email protected] or reply to this message. You can visit the group WEB SITE at http://groups.google.com/group/yclsa-eom-forum for different delivery options, pages, files and membership. To UNSUBSCRIBE, please email [email protected] . You don't have to put anything in the "Subject:" field. You don't have to put anything in the message part. 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