By Frank Nxumalo
Human rights continued to be elusive to millions of South Africans despite the wonderful vision of the country’s Constitution and Bill Rights, says the South African Human Rights Commission (SAHRC) at the ongoing Business and Human Rights Conference in Johannesburg, South Africa this week.
“If truth be told, the majority of people that live in our country are not really excited about this Constitution and Bill of Rights. The transition left much of the status quo in place. Land ownership, the judiciary, the economy, not much changed there, it hasn’t meant too much in their lives yet. And it continues to mean very little to them, what motive is there for them to defend it? Hardly any” says Jody Kollapen, the chairman of the SAHRC.
The Conference is the central activity to mark Human Rights Month in South Africa leading up to the country’s celebration of Human Rights Day on Friday, March 21.
It is also part of the United Nation’s year-long celebration of the 60th Anniversary of the Universal declaration of Human Rights.
Kollapen said the inaccessibility of human rights to ordinary South African affected all areas of life in the country.
Two Perspectives on Human Rights
Kollapen says perspectives of what constitutes human rights are nuanced.
“There are those who argue that human rights are about constraining the power of the state. Those who argue that line would argue that issues like fighting torture and abuse and allowing people to participate in the political life of the nation are absolutely important and that the human rights machinery should simply ensure that the state doesn’t unduly interfere in that process,” he says.
“However others would argue that human rights are both about constraining the power of the state on the one hand, and on the other, creating obligations on the state to ensure the development of human potential and the individual in society. This means that we are not simply saying that human rights are about blocking the power of the state but that human rights are also about creating obligations on the part of the state as well as non-state actors in order to fulfil human rights. And that is when the debates comes unstuck.”

The South African Justice System
“In the area of the justice system, we find poor women languishing in jail for having stolen a bar of soap or an item of food from a supermarket while someone like Sir Mark Thatcher, who is convicted of being involved in quite a serious offence – part of a coup in Equatorial – is able to negotiate from the luxury of his Constantia home, a plea bargain agreement,” Kollapen says.
“So how do we deal with this issue that human rights belong to all of us and they belong to all of us equally, when we know in truth and in reality our ability to enjoy rights depends on the rights we have? I can’t imagine that the fact that some can buy more rights was the vision of those who developed the Universal Declaration of Human Rights and the African Charter of People’s and Human Rights.”
The Commodification of Human Rights in South Africa
Kollapen says the reality today is that more and more human rights are commodities that can be bought and sold.
“For example in South Africa, an enquiry we did into access to healthcare found that 60% of the health spend in South Africa goes to 15% of the population and 40% of the health spend goes to 85% of the population,” he says.
“So you have two healthcare systems running parallel in the country. It’s so bad that South Africans who are on medical aid, pro rata have more CAT scans, MRI scans, whatever scans, all the tests than the wealthiest people in Western Europe.”
The Education System in South Africa
Kollapen argues that for South African children attending rural or township schools, the chances of them receiving quality education and being able to take advantages of opportunities that that South African society offers are very small.
“The question people have asked is ‘are we going to have to use affirmative action to deal with the consequences of unequal justice system? he says”