Introduction
Respect for human rights is a central feature for a constitutional democracy. Human rights tend to protect us against the actions of those who exercise power over us and help us create a world where we can reach our full potential as human beings. We are entitled to have our rights respected, protected and promoted simply because we are human beings. We have the rights to dignity and equality. This means that whatever our nationality, place of residence, sex, national or ethnic origin, colour religion,language or any other status. We are all entitled to fundamental human rights.
Breaking Down the Bill of Rights in South Africa
South Africa(SA) has a very complicated human rights history due to apartheid, therefore the protection of human rights is specifically important in this country. Before 1994 the most basic right of the majority of south Africans were not respected by the state. In the works,Drafting of South Africa’s Final Constitution from Human Rights Perspective by Sarkin(1999) it is stated that the native South Africans had their languages, culture marginalized and had suffered gross human rights violations.[1] The population decided as one nation and decided to protect the rights of all when a democracy status was acquired . to ensure that no one is subject to the infringement of their rights, discrimination and denial of their human dignity ever again.
1. International Instruments
The war for equal rights, respect and non-discrimination in SA draws inspiration from the second human rights movement which started after the second World War(WWI). This movement culminated into the adoption of the Universal Declaration Of Human Rights(UDHR) authorized by the United Nations (UN) General Assembly in 1948[2]. Article 1 declares that all human beings are born free in equal dignity and right.
Human rights follow three principle which describe how these rights are protective an how they are applied.
a) Nature of Human Rights.
Human rights are in alienable; this means that such rights under the UDHR will always apply to a person because they are human, these rights cannot be taken away from the person by anyone. Fundamental human rights will not change even by the change of living circumstance.[3] The second core principle is interdependent; this means that our rights come as a full package. This nature of rights come about because some the protection of one rights depends on the protection of another right.
The human rights and freedoms support one another and strengthen each other.
The third core principle is Equality and non- discrimination. Each and every person has the right to equal opportunity and freedom. This can be described as the core principle in SA’s rights protection context.
b) Analysis of International Laws
The most obvious way in which law protects dignity is by proclaiming and enforcing specific norms that prohibit attacks on it. Some of these norms are found in the Common Article 3 of the Geneva Conventions which prohibit among other things outrages against human dignity. Other provisions of Internationale Human Rights Laws(IHL) protects human dignity even when they use certain way like de-gradetional treatment or punishment.[4] Dignity is the basis from which human rights flows. International Covenant on Civil and Political Rights (ICCPR) in the preamble states that, “ Acknowledgement of the rights contained in the bills derive from the inherent dignity of the human person.”[5] The duty to protect and sustain human life is important. No one can be deprived of life or liberty without the due process of the law. The three major human rights treaties specify that no one may be ‘arbitrarily’ deprived of life without further explanation.[6] This means that the government can not just throw people into prison until they figure out whether one is guilty or not. It also calls for a quick and public trial and is a against secret trials where no witnesses are watching. It also requires that accused persons b able to defend themselves with the help of a lawyer.
In a fair and just society citizens are expected to live under the rule of law and not that of man. Equality before the law is a basic right. This principle require that like cases must be treated the same[7]
2. Regional Laws on Equality before the Law, Human Dignity and Right to Life.
The African Charter on Human and peoples’ Rights (ACHPR) also know as the Banjul Charter is the regional instrument meant to promote and protect basic human rights in the African context. This charter which is ratified by 54 countries in the continent recognizes most of the universally accepted human rights and fundamental freedoms. Under Article 3, life and personal dignity Article 4, dignity Article 5.[8]
Article 2 and 3 requires that everyone be accorded equal rights and freedoms. This means that it is illegal for the state to discriminate against any citizen. The list of circumstances when discrimination should not occur is not exhaustive since this charter prohibits the same basses on other statutes.
This charter establishes the African Commission on Human Rights which assess, advice and reprimand member states on human rights violations. This commission draws inspiration from international law on human rights. It refers to African and international standards when determining principles of laws.[9] this is important because for some human rights issues, international treaties and standard offer greater protection than the African Charter.
3. Domestic Laws and legislation
The South African Constitution.
In a democracy like South Africa human rights are guaranteed by the constitution. The constitution is the supreme law of the country( grand norm). Chapter II of the constitution contains all the rights of South Africans in what is known as the ‘Bill of rights.’ This section outlines different types of human rights, it starts by giving a number of basic rights. They include the right to equality before the law, the right to life and to human dignity. The bill of right then goes on to talk about civil right, which are the rights that a person acquire as a member of the community, state or nation. Theses rights include; freedom of religion, belief opinion as well as the freedom of expression. Then we further have political rights which each citizen have to vote, protest and assemble. The SA constitution also focuses on social economic rights like the right to housing, the right to education and the right to access to health services.[10] Not all countries around the world commits to these rights despite them placing a special responsibility on governments. They are all very important because the large part of the struggle for freedom was about improving the lives of the majority of the people.
- Section 9: Equality before the law
The first right that citizens of SA have been given is the right to equality under Section 9 of the bill of rights. Equality was put first because in SA mostly there was always inequality which needed to be addressed through affirmative action.[11]
ii. Dignity
Human dignity is essentially one of the most important components of the SA constitution. This section prescribed laws making illegal unfair discrimination in the nation. The idea of inherent human dignity is not something that a citizen has to work but, something they are entitled to. This being one of the corner stones of the new dispensation. This does not only mention human rights but it is mentioned in the foundatioal provisions, but, also in the limitation provisions and is at the heart of achieving a new South Africa. Everybody’s human dignity is equally respected.
Conclusion
The mentioned different categories of human rights requires the state to respect, protect and promote an fulfill the guaranteed human rights. But citizens also not only have rights and obligations too. The same value that protect us has to guide how we treat one another in society. This implies that citizen have a responsibility to respect these rights at all times even if they don’t agree with another person.
Recommendations
According to the bill of rights, the prescription speak to what the nation aspires for and what at best practice people believe and conduct themselves. However there has been quote hard to believe that there is recognition of the bill of rights in the country. This can be seen from the conduct of congress and even behaviors on the ground which differs between the values and practice. Corruption has been the number enemy of the implementation of the bill of rights. This has been recognized by the constitutional courts which has taken steps to create an environment in which rights are protected through independent and interconnected anti corruption machinery.
Most of the rights in Chapter II has been due and claimable in South Africa. Far too little has been done too promote dignity, equality and various freedoms that are given to citizens under the Bill of Rights.
The social- economic rights like education and access to housing and health-care are indeed only to be rolled out on a performance appraisal basis subject to availability of resources. This is the only exception to the rule. Right to life has been there since 1994 and it is enforceable justice-able since the bill of rights became part of the constitution.
[1] Sarkin J, The Drafting of South Africa’s Final Constitution from a Human-Rights Perspective.The American journal of comparative law 47, no. 1 (1999): 67-87.
[2] The United Nations, 1948, 1 art
[3] UDHR ibid(n 2)
[4] Common Article 3 Geneva convention (1949)
[5] International Covenant on Civil and Political Rights , preamble
[6] ICCPR Ibid ( Article 6(1).)
[7] Miguel, Alfonso Ruiz. “Equality before the Law and Precedent.” Ratio Juris 10, no. 4 (1997): 372-391.
[8] African Charter on Human and People’s Rights, Article 4 ( 1981)
[9] Amnesty International, Guide to African Charter on Human and Peoples Right (2006) 8 available at https://www.amnesty.org/download/Documents/76000/ior630052006en.pdf accessed on May 30, 2020
[10] Wilson, Richard A. The politics of truth and reconciliation in South Africa: Legitimizing the post-apartheid state. Cambridge University Press, 2001.
[11] McGregor, Marie. “Blowing the Whistle: The Future of Affirmative Action in South Africa (Part 1).” S. Afr. Mercantile LJ 26 (2014): 60.