The transformative power of civil society in South Africa: an activist’s perspective on innovative forms of organizing and rights-based practices

ABSTRACT

This essay analyses recent campaigns to fulfil human rights to quality basic education and access to mental health care services, led by SECTION27, a social justice organization in South Africa. It investigates how these campaigns were able to impact on inequality in education and health care and the ways in which they mobilized and empowered communities to demand social justice and drive pro-poor transformation. In particular, it looks at the way SECTION27 used human rights law and the Courts to advance social justice. It records many positive outcomes. But concludes by asking whether, if inequality is enabled by elite power can it only be disabled by people’s power? How can civil society overcome fault-lines in its sustainability, representativity and power structure? It argues that civil society must do more to tackle the systems and not just scratch at the symptoms of a more and more unequal world.

KEYWORDS:

• Social justice
• law
• human rights
• Constitution
• education
• health care

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Civil society has become a wide and loosely used term. It encompasses thousands of organisations in South Afrca and millions internationally. Mbeki and Mbeki (2016, p. 36) cite data from Statistics SA to show how the sector is one of the biggest sources of employment in SA, composed of nearly 500,000 people. In this paper I am referring to a sub-sector of civil society: a community of NGOs and social movements that are pro-poor and explicitly committed to advocacy and organization for equality and social justice, working within the law (at least in democratic societies where it is possible to do so).

2 In law damages are most commonly awarded for harm caused to an individual as a result of the negligence or intention of another person, company or the state. They are monetary amounts, to compensate for a person’s damaged reputation, disabling injury or loss of life. Damages can also be awarded in favour of a company. Constitutional damages are a new area of law, rarely awarded, claimed when there are egregious and repeated violations by the state of a person’s rights.

3 Daily reports of the unfolding Komape trial were carried by GroundUp (2017), an online social justice news outlet, see: https://www.groundup.org.za/search/?q=Komape

4 Inequality in the health system is stark, particularly between the private and public health sectors. It is important to note here that s 27 of the SA Constitution offers only ‘access to health care services’ for ‘everyone’. Section 28 is stronger: it promises ‘basic health care services’ to every child. However, the right to equality in health ought to be reinforced by the Constitution’s overall promise that ‘Equality includes the full and equal enjoyment of all rights and freedoms.’ (Section 9(2))

5 Although the arbitration proceeded smoothly on the surface it was not without serious disagreement between SECTION27 and the government, particularly over the quantum of compensation. Days before the start behind-the-scenes, negotiations took place between Premier Makhura and myself to try and reach agreement on the amount for emotional damages, a dispute that if not resolved could have undermined the legitimacy of the arbitration.

6 This sum has the potential to represent a progressive evolution in approach to the law of damages to bring the law into accord with the spirit of the constitution and put in place a legal schema that places rights, equality and social justice at its heart. Traditionally, in Roman Dutch law, the quantification of damages is based almost entirely on a person’s speculative economic worth, which excludes children from having any value and, given inequalities in wages, render the disabled and the working class of lesser monetary value.

7 The Lancet Commission on Global Mental Health and Sustainable Development (2018) states: ‘Despite substantial research advances showing what can be done to prevent and treat mental disorders and to promote mental health, translation into real-world effects has been painfully slow. The global burden of disease attributable to mental disorders has risen in all countries in the context of major demographic, environmental, and sociopolitical transitions. Human rights violations and abuses persist in many countries, with large numbers of people locked away in mental institutions or prisons, or living on the streets, often without legal protection. The quality of mental health services is routinely worse than the quality of those for physical health. Government investment and development assistance for mental health remain pitifully small. Collective failure to respond to this global health crisis results in monumental loss of human capabilities and avoidable suffering.’

8 One of the main findings of a 2014 report of the World Health Organisation on the Social Determinants of Mental Health is that ‘Certain population subgroups are at higher risk of mental disorders because of greater exposure and vulnerability to unfavourable social, economic, and environmental circumstances, interrelated with gender. Disadvantage starts before birth and accumulates throughout life’ (WHO, 2014). A vicious circle exists whereby just as much as inequality predisposes a person to mental illness, once ill, poverty and inequality then determine the quality of mental health care, or whether people receive care at all. 

9 Naomi Klein (2014, p. 44) estimates that climate-change denialist think-tanks and advocacy groups ‘are collectively pulling in more than $900 million per year for their work on a variety of right wing causes … ’

10 See Claire Tomalin (1992, p. 148, 195) for her description of organisations in London such as Friends of the People and the Society for Constitutional Information; and in Paris before and during the French revolution of ‘women’s clubs’ advocating for political rights and feminism.

11 Moyn makes much of distinguishing between meeting people’s basic needs and human rights. This needs further discussion. Traditionally, the idea has been that human rights ‘inhere’ within people. However, my argument is that human rights are constituted of basic needs that must be met to ensure each human is equal, has dignity and autonomy. Human rights should therefore not be viewed as a fixed list. For example, some argue that given its centrality to modern life electricity should be a human right, or money, or access to the internet. The idea of rights has more traction than basic needs, however, because it carries within it a legal duty on states to fulfill these rights.

12 These ideas are explored further in Heywood (2019).

Additional information

Notes on contributors

Mark Heywood

Mark Heywood is a South African social justice activist. He was one of the founders of the Treatment Action Campaign (TAC) and SECTION27. He has been involved in leading campaigns for human rights for the last 35 years.