By Khaye Nkwanyana (D. National Secretary) – YCL presentation to SADTU in Kwamashu Human Rights Commemoration

Category: Speeches

Our set of human rights as codified in our constitution – do they go enough for us as the left?

22 March 2007

With the advent of democracy in 1994 and the new constitution – Act 108 which was adopted in 1996 by the first democratic parliament under the stewardship of President Nelson Mandela, whose (constitution) essential component within its composite is the bill of rights under section 2 that details a variety of human rights issues through which a society like ours rising from the deeper ruins of the sustained Apartheid setup, a system declared by the UN as not just a human right violating system but a crime against humanity, should be reconstructed with the value system that is in compliance with, and submerging to the dictates of these broad human rights bills as supreme by virtue of their being in the constitution of the Republic.

We are just emerging from many celebrations of the human rights day and upheld so high, the bill of rights as a constitutional guarantor for these, as is reflected through such codified enshrines. It may have been also about celebration of what our constitution has achieved over the last 10 years or so through its boldness on matters of human rights in its section 2 which have been used as court judgements and Human rights commission’s determination on human rights issues, which both are constitutionally founded institutions by chapter 8 and 9 respectively.

Indeed it is without the exclusion of these as much a predication is made with a catapulted expression that is often said and dangled, about us as having the best constitution in the world that (at times some will go to that extent) is a model to the world. More emphasis in this glorification is placed much more on the human rights bills.

We, who are by historical imperatives of social and economic station in society which had plunged us, as an objective reality, into class consciousness and thus our active class belonging, we are therefore Marxist – Leninist so that our immediate mandate and mainstay amongst the many, is that of ever striving to liberate humankind and seek to build a new society from the ruins of the old. We are living in a capitalist system that daily, as its business, consolidates capitalism and a perpetual sense of embellishing capital so that everyone else should aspire or see no need of emptying society with such a class system. It follows from the above reality that as a class society even our value system that we embrace is bourgeois in character, our constitution which is a design meant to build democracy with no pronounced class victor in that “deepened-democratic society” as an ideal and strategic objective of a democratized society. This we proceed from the scientific understanding that there can be no democracy in general, it can only be a bourgeois democracy or socialism – the highest form of democracy where the majority are the arbiter of economic distribution and its governance.

Perhaps we from the left, in particular the communist, it has to be one of our debates that as we seek to deepen, advance and consolidate democracy in a manner that will lead us to socialism and having to just exploit the momentum of the current Party debate on State power and its Medium term strategy (Road to Socialism) with COSATU’s 2015 plan, that upon reaching that stage of commencing with this historic class project, what kind of a constitution would we have – the ready to govern constitution. And how frank would such a constitution be in its thrust in terms of a broad framework, in elevating the proletariat and the working class in general as the drivers of social change in the socialist project with much power over the economy, the dictatorship of the proletariat and other working class elements like organs of peoples power (our soviets).

But more importantly the more nuanced class biased human rights framework as a critical appendage. We are of course having progressive bill of rights in the current set of our constitution but how far does they go, at least for us in the left we may as well have to further ask as to how far do they go to the extent that we can assert ourselves. I may not have sufficient answer even myself on that question so far. This I say proceeding from the premise that they themselves (bill of rights) cannot be neutral in a class society. Their accommodation in the legal structure of the superstructure is meant not to tamper with such class dispensation.

I hold the view that whilst they are progressive but they do not go enough. The design is such that all and sundry can enjoy. I will try without details to make a point by making a call on what we should demand and call for as the Left. By Left I mean the real Left forces, as there appears to be confusion in the current conjuncture as to who constitute a left. Even comrades who have now turned business people (corporate citizens) continue to claim to be the Left despite the ownership of the means of production which practically and scientifically, with immediate effect, without even thought disqualifies them from this status of being Left. A capitalist cannot be on the Left even if he/she carries one of the alliance membership cards.

Having said the above, It could of course be out of opportunism to pretend as though such liberal human rights that we have as codified in the constitution does not fall within the ambit of progressive reforms which, if correctly complied with and effectively implemented as is the case since the inaction of the constitution, have a potential of not militating against our long term course (in a coercive fashion) of building the real democracy as oppose to bourgeois democracy. To that extent it may be foolhardy to present them as reactionary per se, at least at first sight. Indeed there are elements that even in socialist victory can be retained for social progress.

There are many Court rulings and Human rights Commissions interventions that are in order and have indeed proven to be revolutionary in themselves in terms of building a normal society that cares for one another. There have been many decisions that some had resulted in prosecution of perpetrators from racism acts and there are cases where Constitutional court for instance, had to order the executive to facilitate a particular law to give permission to a particular practice from the human rights point of view, Gay and Lesbian marriages recently where the Parliament was ordered within 12 months to legislate a law that will give effect to that practicality is a case in point. All of these must be celebrated as part of deepening the national democratic revolution.

It is my view that human rights should not always, as it would seem, be about a balancing act. It has to be about a radical line of trying to build a particular society. An act of pendulum ball-sway where a touch of point A and B with equal measure in building society may itself be counter – revolutionary. Even in the context of the pursued for international best practice, that must be evaluated against the background of the kind of society we seek to build. Not just a religious international comformity.

A case in point that I may risk to be controversial is the whole democratic right that is more often predicated in relation to the HIV/Aids pandemic and the right of individuals to privacy about their status. This may as well relate to the voluntary testing etc. If the reality in South Africa is that there’s a problem about South Africans who are HIV positive who are hell bent on spreading the virus by infecting others and that testing remains a choice or voluntary as opposed to compulsory testing, in the spirit of fighting the pandemic aggressively and fighting for the elimination of stigma in the disease, why we should elevate individual rights at the expense and heavy risk of society and its future. Why an individual should have a right not to know his or her status whilst being sexually active and at times, not protective. And why upon being tested, an individual should be allowed to keep it as a private matter just because there is societal stigma and thus discrimination that we as a society also claim to be all out to defeat? Is that an act of dealing with stigma and taboo attach to it by exercising those rights including privacy rights or we are giving those tendencies a helping hand to thrive under mechanical obsession and observance of human rights, are we going to defeat discrimination?

Countries like Cuba are almost without HIV/Aids and its pockets where is to be found is treated as any other sickness. A tested positive person must be known in community (Community in Defense of the Revolution – CDR) for their collective effort to look after that person in terms of cooperating with medical routine. The community doctor must report officially to the CDR, this help to prevent any promiscuous behaviour of such an individual but even more for collective energies of the community throughout. This has been the biggest and effective medicine of confronting such a disease, it could have been in the similar way like in our country that the stigma would have arrived in Cuba in relation to the fact that its through sex that such a high proportion of HIV is acquired in the main, that it is therefore in a perverse way, spread and thus the perception that its out of promiscuity that individuals get infected which is seen as immoral acquisition of the virus- hence stigma. But in that country there is no such. Notwithstanding the kind of society in Cuba which is communist and therefore its principles and morality system which is quite distinct to ours, but we can draw some lessons and begin to radically work towards that end in order fight the Aids war.

The right of an individual cannot transcend the right of the community and society as a whole, that is bourgeois. Individual right must submerge to the majority. And in this case, in the spirit of curbing such a pandemic and in the same spirit of undoing the stigma embedded in our community which can easily be dealt with by practical means so that HIV/Aids can be seen in the same light as cancer, TB, arthritis etc. we therefore need radical measures that will redefine the society’s rights over individuals rights, because that is bourgeois application of human rights where an individual becomes Alfa and Omega in dealing with broader collective societal challenges. I will argue that unless these bourgeois and technicist application of rights are changed in the rule of fighting Aids we are far from surmounting this deadly disease. So it is my controversial view that such practices as led by the government are liberal and are undercutting serious and radical tackling where certain stereotypes and rights must be waived in the spirit of confronting a social challenge. I may be wrong!

Apartheid was declared as a crime against humanity, an abhorrent system where race was superimpose as a determinant of ones standing in society and a license to be an exploiter in the same way as it was a permit to wield political power thereby subjugating to inferiority position those who, by fault of birth, were black in their skin pigmentation. And correctly this was seen by UN as human rights violating system. But I want to argue that one of the principal human rights violation that perhaps as the working class must bring into the fore as should be a human rights issue, which was there during Apartheid era but limited to race relations, is the exploitation of man by man. That millions and millions of our people are subjected to the selling of their labour power, working 40 hours a week for few capitalist class that in turn get the lions share by virtue of owning the means of production including labour power, whereas these millions of toilers are recouping crumbs. This may be a revolutionary push that can be easily discerned as populist, the right not to be exploited is a genuine human right issue.

There is a new debate brought by SAIDC and is actively campaigning for the constitutional insertion of the ” Right to Work Campaign” that every South African has a right to work so that the government is compelled to make that reality as would be per constitutional provision. These are reforms as they lobby for more employment through bourgeois logic in a bourgeois society, they are however progressive in the contemporary in terms of cushioning but the ” the Right not to Exploit” as a human right issue for legal codification can represent a classical revolutionary push.

I am raising these issues quite guardedly that we are in a capitalist society and in capitalist government whose legal base is in conformity to this arrangement – the status quo. Such above issues are issues to be struggled for with the imminence of opposition from class enemy and its surrogates as this may mean a strategic tilt towards a radical NDR that has socialist objectives.

To perform these tasks requires a thorough going education of our people and this leads me to the role that SADTU should play in using its given and uncontested terrain of classroom teaching as a starting point. These are issues that we must impart to Learners day by day and in other teachers. Progressive teachers have a critical role in the revolution of transmitting the revolutionary values and awareness to the future working class in the classrooms. Their task is to demystify the bourgeois content of the curriculum whilst currently teaching those subjects.

It is my considered view that as the left we should be calling for a radical approach to the dealing with the HIV/Aids pandemic in a manner that will not counterpoise rights of the individuals over society rights. I mean a revolutionary approach where testing and counseling would be mandatory, and I mean where upon testing positive a right to privacy can be discretionary from the state in the context of whether or not such will or will not be in the interest of the fight against prevalence of such a pandemic. A legislative framework to give such effect should be called upon by us so that we even deal with the stigma and prejudices that accompany such prevalence.

We may not have the likes of Cuban vibrant civil society that is robust in the context of CDR, but disclosures will in the beginning raise some alarm bells and create a sense of discomfort but progressively, overtime as would be routely done, will be embraced as an important instrument to fight stigma a good herb for education. This may turn out to be a norm accustomed.

To the extent that we as the working class, who constitute the majority as a population, and to the extent that we are exploited by this capitalist system, we have to call as an urgent question that the constitution whilst through the bill of rights accentuate the right to trade ( chapter 2, section 22) but it is silent in terms of the right to not to be exploited we need to make a lot of noise on this question to be a human right issue on the basis that it cannot be justifiable that a worker can sell labour for crumbs. Of course it may sound populist!

Our then broader challenge as progressive teachers as organized under SADTU is to transform the content in the long run so that Learners are given choice than being force-fed one line of thinking and thus their future approach to life. So it is this conscious counterweight that progressive teachers must help to give in the interest of society through instilling to that young mind such collectivity in society than individuality. This will mean to impart these elements of the kind of society as communist we need to build with no apology, even these human rights issues they must must not be imparted religiously. Such a role is so mandatory to the extent that without doing it as teachers you are plainly collaborating with the bourgeois system by indoctrinating bourgeois sober mindedness to the Learners.