Liberalism, Human Rights and Foreign Policy

15th ALAN PATON LECTURE

LIBERALISM, HUMAN RIGHTS AND FOREIGN POLICY

John Dugard

6 March 2008, Colin Webb Hall, University of KwaZulu-Natal, Pietermaritzburg

Organised by the Alan Paton Centre & Struggle Archives

Sponsored by the Liberal Democratic Association

I am honoured to have been invited to deliver the 15th Alan Paton Lecture. I knew Alan well. We worked together in the Institute of Race Relations and I met him on social occasions at his son Jonathan’s home. The last time I saw him was at his grand daughter Pamela’s wedding, when we hosted the reception at our house in Craighall Park.

But my relationship with Alan goes back much further. Like many South Africans of my generation I was deeply influenced by Paton’s writings. Cry the Beloved Country was published when I was twelve. It was the first book I read on what used to be called “the South African problem”. I still get a choking feeling in my throat when I read the opening lines of this work:

There is a lovely road that runs from Ixopo in to the hills. These hills are grass covered and rolling, and they are lovely beyond any singing of it”.

Soon after I read Too Late the Phalarope and when I become intellectually pretentious, his lives of Hofmeyr and Archbishop Geoffrey Clayton. To me his writings were a blend of the scriptures and Ernest Hemingway. His clipped and economical sentences in the style of Hemingway had a scriptural quality, in keeping with the seriousness of his purpose. He spoke too in the style of the scriptures. That is not to say that his speeches were sermons. They were too beautifully crafted and phrased. But like his writings they had a scriptural quality. Good writers are often poor speakers. But not so Paton. He used both the written word and the spoken word to great effect.

I have recalled Paton as writer and speaker. But in addition he was for forty years the conscience of South Africa, a man whose commitment to human dignity and racial equality were unswerving. Throughout the dark years of apartheid he was a light, a beacon of hope and a voice or principle and reason.

Today, unfortunately, the role of persons such as Paton and Suzman in creating our South African democracy is overlooked – even suppressed. But when South Africans are able to reflect more carefully, after the passage of time, on the turbulent years of apartheid I have no doubt that Paton, and others, will receive the honour that is undoubtedly their due.

Today I am going to speak about liberalism, human rights and foreign policy. My emphasis will be on South Africa, but I shall also comment on these subjects in a broader, universal context.

LIBERALISM

This is not the occasion for a discourse on the meaning of liberalism. Suffice it to say that there are two main channels of liberalism: economic liberalism, which promotes the free market and resists state intervention in economic life; and human dignity liberalism which seeks to advance human dignity by the protection and advancement of human rights.

Many will argue that these two channels flow into a common river, that the two channels are never clearly separate. That one cannot have one without the other. This is not necessarily true: social democracy, in emphasising both civil rights and social/economic rights, accepts the need for state intervention in order to secure the welfare of its people – if necessary at the expense of free market principles.

In many parts of the world today liberalism is associated more with free market principles than the protection of human rights. South Africa too has known its free market liberals. But in general I think it is true to say that liberalism in South Africa has been more associated with the advancement of human dignity by the protection of human rights. Certainly this was Alan Paton’s position, and the position of the Liberal Party. In the early 1990s, however, some liberals, in opposing the inclusion of social and economic rights in the Constitution, seemed to lean more in favour of economic liberalism than human dignity liberalism.

HUMAN RIGHTS

Today we have a Bill of Rights, guarded by courts, and particularly the Constitutional Court. We have a Constitution that recognizes a separation of powers and extends the franchise to all. For liberals who opposed racial inequality and the denial of human rights and advocated universal franchise it is a dream come true. In 1968 Margaret Ballinger wrote “Years ago, Alan Paton prophesied that South Africa would eventually reject the Liberal Party but accept its policies” (Randolph Vigue Liberty Against Apartheid. A History of the Liberal Party of South Africa, 1953-1968 (1997) 231). This prophesy was fulfilled only in 1994.

The South African Bill of Rights must be seen in the context of the evolution of the international protection of human rights over the past sixty years.

Modern human rights instruments are inspired by three rallying calls. First, the appeals for “four freedoms” by President Roosevelt in 1942 – freedom of speech, freedom of religion, freedom from want and freedom from fear. Second, the UN Charter which reaffirms “faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women”. Third, the 1948 UN Universal Declaration of Human Rights, which proclaimed a set of civil and political and social and economic rights. This has led to a host of universal legally binding conventions designed to protect human rights – notably the International Covenants on Civil and Political Rights, Economic, Social and Cultural rights; Conventions aimed at prohibiting discrimination on grounds of race and gender; a Convention on the Rights of the Child’; and Conventions against Torture and Enforced Disappearances. There are also regional human rights conventions for Europe, the Americas and Africa – but, sadly, not Asia.

Together these conventions or treaties cover virtually every human right. One freedom, however, has not been addressed. This is freedom from fear, which might in theory be proclaimed in a convention but which is a freedom that cannot be guaranteed by either courts or executive. Only profound political and economic changes can remove the fears of military intervention, terrorism and crime that trouble millions of people in today’s world.

South Africa’s apartheid regime stood firm against human rights. It was one of only eight states that refused to endorse the Universal Declaration of Human Rights, it failed to become a party to any human rights treaty and it rejected suggestions that a Bill of Rights be included in the 1961 and 1983 constitutions. During this time the very mention of human rights was unacceptable to government, legislature and courts.

Both radical and moderate opposition groups made it clear that their visions of a democratic South Africa included a commitment to human rights. In 1955 the ANC and Congress movement adopted a Freedom Charter and in 1988 the ANC published Constitutional Guidelines for a democratic South Africa that envisaged a Bill of Rights based on the Freedom Charter. In 1960 the Progressive Party promulgated a proposal for a Bill of Rights and in the 1970s and 1980s civil society began to discuss the form that a Bill of rights in a democratic constitution would take. Then, to the surprise of many, the apartheid government itself directed the South African Law Commission in 1986 to consider the desirability of adopting a Bill of Rights. While it was widely believed that the government expected the SA Law Commission to prefer group rights over individual rights, the Law Commission in 1989 proposed the adoption of a standard Bill of Rights that would protect individual civil and political rights.

When the political parties, movements and groupings met to draft a democratic constitution in the early 1990s there was therefore general agreement that the Constitution would include a Bill of Rights. Opinions differed, however, over the rights to be included. The ANC, inspired by the Freedom Charter, accepted that both civil and political and social and economic rights should be included – despite the fact that it must have known that justiciable economic and social rights could be used to compel it in government to provide for the material well-being of the people of South Africa. Strangely, resistance to the inclusion of social and economic rights came from the group least likely to be compelled to provide social services to the people – namely the business sector, the Democratic Party and the SA Institute of Race Relations. I am still not clear as to the reason for this hostility to social and economic rights. Was it because as a matter of law they believed that a Bill of Rights should be a shield, to protect the individual against the government, and not a sword to compel the government to provide education, health, employment and housing to its people? That civil and political rights were justiciable by courts of law, in the sense that they could pronounce on the violation of rights, while social and economic rights cannot be enforced by courts of law? Or was the reason more sinister. Did the business community fear that, prompted by social and economic rights in the Bill of Rights, an ANC government would create a welfare state from heavy taxes imposed on corporations and wealthy individuals? We shall never know the answer, but one thing is clear. The opposition of the business community and the Democratic Party confirmed the decision of the ANC to include economic and social rights in the Constitution and for this we should be grateful. I am confident that liberals who opposed the inclusion of such rights in the Constitution today accept that they were wrong.

The ANC government has a good record on human rights. It has signed and ratified every major human rights convention except the International Covenant on Economic, Social and Cultural Rights. In general, it has respected the civil and political rights of its citizens. Under its rule we have almost forgotten detention without trial, the banning of individuals, the torture of detainees, restrictions on freedom of expression and assembly, population relocation, and above all, discrimination on grounds of race. It has, however, not one but two Achilles heels when it comes to human rights. First, the promotion of economic and social rights. Secondly, respect for human rights in its handling of international relations and the treatment of non-citizens. These are the two issues on which I wish to speak today. I shall first examine the conduct of government. Thereafter I shall consider the role of the courts on these two issues.

ECONOMIC AND SOCIAL RIGHTS

The South African Constitution of 1996 recognizes several economic and social rights: the right to have access to adequate housing (section 26) and the right to have access to health care, sufficient food and water, and social security (section 27). The State is required to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. There is also a right to education (section 29).

Essentially it is for government to advance these rights by policy and the allocation of funds. When it fails to advance health care, housing or education or to provide water or food for its people, and the government has the resources for these purposes, it acts in violation of its obligations. The International Covenant on Economic, Social and Cultural Rights recognizes this. It provides that a State is not compelled to implement its provisions immediately, as is the case with the International Covenant on Civil and Political Rights, but instead, with regard to its available resources, to achieve progressively the full realization of the rights in the Covenant. South Africa has for reasons unknown as yet failed to ratify this Convention, but it is to be guided by it in the implementation of the economic and social rights in the Constitution.

South Africa is a mix of first and third world. Extreme poverty and extravagant wealth exist side by side. At least a quarter of the population is unemployed. In such circumstances, it is difficult for government to immediately provide adequate housing, health care, food and water for its people. It must therefore be allowed to work progressively towards the realization of these goals, having regard to the available resources. In one instance – the refusal for many years to provide medication for HIV/AIDS sufferers – the government has been guilty of failure to provide adequate health care for political reasons. In most cases the reasons for failure to deliver have been more complex. The decentralization of power has placed the delivery of some of these services in the hands of municipal authorities which in some instances have proved incompetent or unwilling to deliver services properly. Sometimes the central or provincial governments are in default. Whatever the reasons, no one can deny that many South Africans today suffer from a lack of adequate housing, health care and water when there are funds available. The media provide us regularly with accounts of communities without adequate housing or that face eviction with nowhere to go; of the lack of beds and clinical resources in hospitals; of communities whose water supply has been cut off; and of classroom over crowding and teacher shortages.

INTERNATIONAL RELATIONS AND FOREIGN POLICY

According to section 7(2) of the Constitution “the state must respect, protect, promote and fulfil the rights in the Bill of Rights”. As there is no territorial limitation on this provision, there is no reason why it should not bind the executive, both domestically and internationally. This means that the government is constitutionally obliged to pursue a foreign policy that promotes human rights and is guided by the Rule of Law. The government does not see it this way. It prefers to treat the Constitution as a purely domestic instrument that has no bearing on foreign policy. This explains its foreign policy which seems to be guided by pragmatism, self interest and an apparent determination to follow rather than to lead its fellow African States and Non-Aligned States.