A few days ago, while giving a public lecture in Mauritius, I was asked why it should be necessary to enshrine socioeconomic rights in the constitution, given that Mauritius is already a welfare state.
That question followed a public lecture I gave as a guest of the minister of justice, human rights & institutional reforms, Maneesh Gobin, as Mauritius looks to SA as it reviews its constitution after 50 years of independence.
Mauritius has some parallels with SA’s history of slavery, indentured labour and colonialism. Its 1968 constitution sought to heal the wounds left by its unjust past.
There are good lessons from Mauritius’s own democracy journey — not least that 50 years after independence, it has had no military coups or bloodshed. Seeking to adapt its constitutional framework, to ensure a better responsiveness to society’s changing needs, shows admirable wisdom.
While a timeless constitution is a good thing, failure to adapt in the face of fundamental changes or expectations can lead to problems.
In my lecture, I advised that while it is wise for Mauritius to draw lessons from SA, nothing beats an authentic response to one’s unique circumstances.
SA may be exemplary in some ways but it also has challenges to be noted and avoided
— Thuli Madonsela
I also noted that SA may be exemplary in some ways but it also has challenges to be noted and avoided, among them being that the social justice outcome that was mapped out as a clear goal of our 1996 constitution has yet to be fully achieved, while the pace of change is far from satisfactory.
But SA’s post-apartheid journey owes much to the remarkable strength of its constitutional vision and innovative architecture, combined with hope-inspired rather than fear-driven leadership.
The architecture of SA’s constitution included the creation of the public protector and other chapter nine institutions. These have been critical in expanding freedom’s frontiers, particularly for marginalised groups. These institutions aim to provide truly accessible public accountability and access to justice.
The fact that SA’s democracy remains so strong, despite the tempests we’ve faced, is as much a testament to having a strong constitution that was built to last, as it is to the quality of most of its leadership. Our constitution enshrines a set of fundamental human rights, which transcends civil and political rights and incorporates socioeconomic rights — access to water, food, health services, housing, education and children’s rights. It also dictates the character of a state fit to take society into the future: one based on ethical, transparent and accountable governance.
The rights and responsibilities are backed by innovative oversight institutions, like the public protector, that seek to end impunity when it comes to the improper exercise of public power.
Keeping democracy on track
The constitutional court, another SA innovation, helped keep democracy on track despite the problems we’ve seen in the headlines in recent years around executive ethics and a Trojan horse that amounted to state capture. I also emphasised the importance of engaging people in both constitution making and implementation, and that the key is to ensure that democracy works for all.
Back to the welfare-state question I was asked. My answer was that guaranteeing these socioeconomic rights in a constitution will assure democracy, by not leaving it to politicians and political entrepreneurship to determine what’s good for the people.
Socioeconomic rights primarily place a responsibility on the state to create an environment that frees everyone’s potential, so that people can improve the quality of their own lives, while contributing to the wellbeing of their communities.
Ultimately, the future is shaped by those among us who see what is not seen, and are prepared to dream beyond what has been done and seen before.
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