INTERGENERATIONAL justice is a weird concept. It is one I tried to explain to Wits University philosophy students in a lecture on affirmative action last week. This generated discussion that is worth rehearsing. One of the more serious objections to affirmative action is that it is unjust to expect young white South Africans to bear the brunt of the social and economic cost of affirmative action for a history that was beyond their control. In effect, young white South Africans are being made to pay for the moral sins of their parents.
This notion of intergenerational justice seems like no justice at all. Why should the Mandela generation pay for the actions of others? The expectation that they do is surely unjust. This objection is wholly compatible with recognising that black SA has a claim of justice against the perpetrators of apartheid. The problem is that a lot of those perpetrators are dead or dying. How is it morally acceptable to hold Hendrik Verwoerd’s grandchildren responsible? And if it is not fair to do so, then surely the moral foundation for policies such as affirmative action and black economic empowerment collapses?
The government does not understand this moral problem that lies at the heart of affirmative action. This is why it has often shown little empathy for young white South Africans, who are tempted to leave their country of birth. This objection is in fact deeply challenging and must be taken seriously. Merely taking it seriously will itself persuade many young white South Africans that there is not a blind, unreflective racialism driving demands for social justice.
It seems correct to say someone should be held morally and legally accountable only for that which is within their control. But if voluntary control is a necessary condition for the attribution of blame, then presumably no one could be blamed for activities that took place before they were born. It makes no sense to indict someone’s future self.
We can apply these ethical intuitions to the affirmative action debate. A 20-year-old white South African could not have prevented apartheid from coming about. Therefore any policy that demands sacrifices from innocent young white South Africans in order for victims of racism to enjoy compensatory justice is itself unjust.
This objection should not be dismissed lightly. Doing so would be intellectually dishonest and politically dangerous. One should acknowledge the coherence, cogency and emotional substance behind the intuitive sense of injustice that someone born in 1990 might be feeling. These feelings are heightened by the knowledge that your friend, Sipho, who has been at a private school with you, might get prioritised over you for a job “simply” because he is black, even though you appear to have indistinguishable life journeys behind you.
Yet, while compelling, this objection is ultimately answerable. The key to understanding social justice demands is to grasp the conceptual distinction between moral sins and moral burdens. No one should be forced to inherit the moral sins of others. That violates natural justice considerations.
However, we can inherit moral burdens. If, for example, I have benefited unjustly from the wealth acquired by my immoral, murderous and racist father, who exerted force over others in acquiring that wealth, then I inherit moral burdens stemming from this fact. The immoral origins of the wealth I have inherited set up the moral burden. This is wholly compatible with recognising that I myself am not morally or legally responsible for the unjust wealth acquisition.
Consider the somewhat remote but illustrative example of Saartjie Baartman’s remains. Would it have been morally acceptable for contemporary France to say: “We admit our forefathers did immoral things that resulted in Saartjie eventually dying and being buried here. We are blameless, though, and so have no moral burdens to repatriate her remains.” Surely not — history hands down moral duties unconnected to our immediate lives.
This is the nature of the moral foundation of affirmative action. The average young white South African still has a better shot at living a flourishing adult life than does her black counterpart as a direct result of unjust historical facts whose structural impact lingers. Even your friend Sipho, who seems to speak your language, faces challenges he does not share with you and which stem from our racist history, all of which you have the luxury to be blissfully unaware of. This genesis of contemporary inequalities gives us an overriding moral reason to implement policies aimed at redress. It also constitutes a moral reason why young white South Africans, though blameless, are fair targets of policies aimed at redress.
Whether these policies, such as affirmative action, work adequately in practice is a discussion for another day. What is clear, however, is that these kinds of policies do have a moral justification, albeit a complex one. It would help, of course, if the government was able to appreciate these complexities and show sensitivity by engaging young white South Africans in a caring and non-alienating manner on such potentially divisive topics.
http://www.businessday.co.za/articles/Content.aspx?id=84803
Friday, October 23, 2009
Wednesday, October 21, 2009
Professor Jonathan Jansen: reconciliation by fiat?
And there I was thinking that Desmond Tutu and the Truth and Reconciliation Commission (TRC) are so last year! Until....along comes Professor Jonathan Jansen and tries - while Tutu is still VERY much alive and well - to (re)invent himself as something of a Tutu-incarnation within the education sphere. Honest motives for sure - he is one my favourite people in this challenging rainbow country of ours: super smart, sincere, and visionary. And yet, I cannot say for certain that his unilateral - unilateral being an important qualifier - decision to invite the four racist boys back onto University of the Free State (UFS) campus was necessarily his finest moment. Here are some of the things that trouble me about his decision.
First, if you do opt for a model of restorative justice as the preferred tool for engaging issues of racism and healing divisions between persons that came about because of racism, then certain preconditions need to be satisfied to justify letting go of more retributive forms of engagment.
For one thing, all parties need to buy into the process. Else you are not 'restoring' anything but rather paying lipservice to the 'restorative' bit in 'restorative justice', thereby making a mockery of reconciliation. This is EXACTLY the case in this instance. The Student Represenative Council (SRC) was not consulted, nor other student bodies, let alone the student body more widely. The victims of the racist actions were not asked for an opinion either. This is turning out to be a case of reconciliation by fiat. It was ill thought through procedurally which in turn robs the process of the possibility of being a catalyst for healing and reconciliation.
Another precondition, surely, is that one requires the offending parties to show remorse of some sort? This was the case with the TRC and the Amnesty process. Now obviously these more grand national processes are very different to the silly bits of naughty behaviour of 'mere' students and one should not melodramatically compare them for longer than a second or two. But hey, it is Jansen himself who draws on the reconciliation motif! So it is fair to ask if he is right to analogise, not least because that is the *rationale* for his decision.
And the answer is 'no'. Although many guilty folk did not show remorse during TRC hearings, nevertheless to the extent that the TRC process was a success, an ingredient of that success was the demonstration of remorse. These four racist boys have shown none.
Second, we should be careful to excuse the actions of individuals on the ground that that there are grand narratives that have structured those actions. Yes, that it is not untrue - to some extent. But we are not automatons who lack control over our actions. Quite simply, they deserved tougher censure rather than being allowed to be let off the hook courtesy of our history.
In the end, Professor Jansen has bought himself MASSIVE social capital from the Afrikaans community on campus - no doubt. That is important not least because he is their first black rector. But he might be miscalculating in not realising that black support in turn is not automatic and so he needs to be courting the black, university community as craftily as he is courting the the more traditional, white Afrikaans lot.
Yes, this is a complex and somewhat crass racial game. Such is the reality of the UFS - and our country. Prof Jansen has a great track record. We should all support him and wish him well.
Equally, it is important to point out that he has erred on this occassion, so that next time round he will opt for consultative processes, rather than imposing reconciliation - or other solutions - by fiat.
First, if you do opt for a model of restorative justice as the preferred tool for engaging issues of racism and healing divisions between persons that came about because of racism, then certain preconditions need to be satisfied to justify letting go of more retributive forms of engagment.
For one thing, all parties need to buy into the process. Else you are not 'restoring' anything but rather paying lipservice to the 'restorative' bit in 'restorative justice', thereby making a mockery of reconciliation. This is EXACTLY the case in this instance. The Student Represenative Council (SRC) was not consulted, nor other student bodies, let alone the student body more widely. The victims of the racist actions were not asked for an opinion either. This is turning out to be a case of reconciliation by fiat. It was ill thought through procedurally which in turn robs the process of the possibility of being a catalyst for healing and reconciliation.
Another precondition, surely, is that one requires the offending parties to show remorse of some sort? This was the case with the TRC and the Amnesty process. Now obviously these more grand national processes are very different to the silly bits of naughty behaviour of 'mere' students and one should not melodramatically compare them for longer than a second or two. But hey, it is Jansen himself who draws on the reconciliation motif! So it is fair to ask if he is right to analogise, not least because that is the *rationale* for his decision.
And the answer is 'no'. Although many guilty folk did not show remorse during TRC hearings, nevertheless to the extent that the TRC process was a success, an ingredient of that success was the demonstration of remorse. These four racist boys have shown none.
Second, we should be careful to excuse the actions of individuals on the ground that that there are grand narratives that have structured those actions. Yes, that it is not untrue - to some extent. But we are not automatons who lack control over our actions. Quite simply, they deserved tougher censure rather than being allowed to be let off the hook courtesy of our history.
In the end, Professor Jansen has bought himself MASSIVE social capital from the Afrikaans community on campus - no doubt. That is important not least because he is their first black rector. But he might be miscalculating in not realising that black support in turn is not automatic and so he needs to be courting the black, university community as craftily as he is courting the the more traditional, white Afrikaans lot.
Yes, this is a complex and somewhat crass racial game. Such is the reality of the UFS - and our country. Prof Jansen has a great track record. We should all support him and wish him well.
Equally, it is important to point out that he has erred on this occassion, so that next time round he will opt for consultative processes, rather than imposing reconciliation - or other solutions - by fiat.
Monday, October 19, 2009
The temptations of moral vegeteraniasm
I flippantly mentioned a couple of weeks ago that I had been tempted for a split-second to become a vegetarian but that I had never found the arguments for vegetarianism persuasive. Because I don't find them compelling, I need not feel like a moral failure - not that moral shortcoming is necessarily a reason to beat onself up; virtuous behaviour on a full-time basis strikes me as rather dull! Instead, I always felt pity for those missing out on bacon, burgers, braais and other meaty goodies. Yet, these damn veggie arguments are still simmering in my head. What to make of them? Let me set out just one of the arguments that still bother me. Please help me find a response before I go to Kate's braai this forthcoming Saturday...
To cut very crudely to the chase, if it is not ok to eat some sentient creatures, why are others more deserving of landing on my plate? This is of course old hat; it is an argument as stale as a piece of left over braaied meat itself. But truths can be stale - that's an aesthetic problem with them, not a logical one :)
The only response, it seems to me, is that there must be stuff about human beings, besides their capacity for pain/pleasure, that mark them out for special ethical consideration in my moral reasoning such that I can treat non-humans who lack these special traits, differently. But of course it is impossible to figure why the hack Samantha or Simpiwe - I made them up, people - are more special than the sheep outside. Special in a sense that justifies differential moral weight in my ethical reasoning?
Seems the answer must be 'no'. Unless, of course, we simply stipulate that morality is a human enterprise and non-humans by definition do not form part of the moral community. But that sort of ad hoc circularity leaves me cold.
On the other hand, we might try our luck by pretending that the key to why I do not eat humans is that humans have language, intelligence and other human-specific capacities ... well, uhm, not all of us do. So we still have not justified a general law that says, "be kinda nice to ALL other humans...and at the very least don't eat 'em."
How do I avoid the following dillemma? I must either become a vegetarian or in principle accept that humans do not have unique moral value ....indeed in principle I should be open to human burgers, not just beef or veggie ones.
Please tell me I'm simply engaging in bad moral philosophy or else I'd have to take veggie burgers to the braai on Saturday ....
Eish.
To cut very crudely to the chase, if it is not ok to eat some sentient creatures, why are others more deserving of landing on my plate? This is of course old hat; it is an argument as stale as a piece of left over braaied meat itself. But truths can be stale - that's an aesthetic problem with them, not a logical one :)
The only response, it seems to me, is that there must be stuff about human beings, besides their capacity for pain/pleasure, that mark them out for special ethical consideration in my moral reasoning such that I can treat non-humans who lack these special traits, differently. But of course it is impossible to figure why the hack Samantha or Simpiwe - I made them up, people - are more special than the sheep outside. Special in a sense that justifies differential moral weight in my ethical reasoning?
Seems the answer must be 'no'. Unless, of course, we simply stipulate that morality is a human enterprise and non-humans by definition do not form part of the moral community. But that sort of ad hoc circularity leaves me cold.
On the other hand, we might try our luck by pretending that the key to why I do not eat humans is that humans have language, intelligence and other human-specific capacities ... well, uhm, not all of us do. So we still have not justified a general law that says, "be kinda nice to ALL other humans...and at the very least don't eat 'em."
How do I avoid the following dillemma? I must either become a vegetarian or in principle accept that humans do not have unique moral value ....indeed in principle I should be open to human burgers, not just beef or veggie ones.
Please tell me I'm simply engaging in bad moral philosophy or else I'd have to take veggie burgers to the braai on Saturday ....
Eish.
Friday, October 16, 2009
True confessions of a cultural schizophrenic
ON A hauntingly beautiful track, Telling Stories, Tracy Chapman laments the science fiction that sometimes exists in the space between her and everybody else. She often fills this space with fictional narratives in which she is able to escape in a space ship. Sometimes, she melancholically concludes, a lie is the best thing. These lyrics have been on my mind lately as I plod along with a book manuscript of mine. In this book, too personal to fully live outside my headspace , I share some of my deepest, scariest confessions as a cultural schizophrenic.
Black kids who were born during the dying days of apartheid and hit puberty after Nelson Mandela’s release from jail have undergone identity journeys that, like Tracy Chapman’s existential thoughts, need to be shared with the world.
Instead, we bottle them up or restrict their discussion to cappuccino-aided trips down memory lane about school life at multicultural (read: multiracial) schools. This failure to record and grapple with our inner thoughts could result in strands of democratic SA’s social history being lost. We should not let dry academic theses and journal articles about integrated schooling be the sum total of our recorded memories. Lived experiences need to be captured in richer, rougher detail in other forms, such as works of fiction. A sprinkling of works do so, but these barely scratch the surface.
Here is why all this matters.
Some black teenagers and young adults are cultural schizophrenics. This is neither bad nor good. It is just an experiential fact about us. It is a fact to be understood and mulled over. By cultural schizophrenia I mean that we often “code switch”, as the Americans say, between township language and the language of formerly whites-only institutions into which we have been inducted as honorary members. “Language” refers broadly to the values, principles, culture and norms (linguistic ones included) of an institution or a social space.
When I wear my non-township hat, I speak English, speak corporate (or did, before moving into the political and media space), sip exotic wines, travel the world, espouse deeply liberal, individual world views, and am an agnostic who lives in a secure complex in northern Johannesburg in which my neighbours remain strangers some two years after I moved in. This is middle class escapism at its best and worst.
My township self, who only comes out during holidays spent at home in the Eastern Cape, or strained conversations with family members still stuck in the geography that now forms the landscape of my childhood memoirs, speaks Afrikaans, has a fading commitment to Catholicism, is thoroughly working class, knows all his neighbours very well, has a spirit of communalism that is stronger than the selfishness of his coconut alter ego, and has never heard of JM Coetzee nor travelled outside the Eastern Cape.
This cultural schizophrenia is, of course, just a part of the human condition. Multiple selves are present in all people. No doubt psychologists can chip in with academic footnotes that challenge the sense of uniqueness of what I am describing here by demonstrating it to be a general human trait.
But there are at least two important reasons why this South African instance of cultural schizophrenia should interest us. One reason is simply sociological. The novel that has best rehearsed the inner lives of these postdemocratic identities is K Sello Duiker’s The Quiet Violence of Dreams.
Often black families imagine their worldly sons and daughters in the corporate space live glamorous, stress-free lives . This is partly true. Often, however, the cost of multicultural education, and opportunities for personal and professional growth, is dissonance. You straddle two worlds. Only the most unaware coconut would not have a personal moment of quiet reflection when the fiction between herself and her aunties and uncles back in the township jars a cocktail-sipping night out in Sandton. Exploring and recording these narratives is therefore important. They are a source of cultural history.
Second, we will never understand, let alone dismantle, structural inequalities in social and economic spaces if we do not understand the idea of institutional language. Many young black graduates struggle in the corporate space because they are not fluent in the institutional language of the old boys who had decades to stamp their values, principles and language on those spaces before the arrival of democracy. Cultural schizophrenics — invariably black people who went to former Model C schools or private ones — negotiate these spaces better than equally qualified black people who only have a township self.
Cultural schizophrenia has become an economic imperative for blacks. Personal identity politics clearly have a more intimate connection with public space and the private sectors. We cannot afford to lack self-awareness about these social complexities.
http://www.businessday.co.za/articles/Content.aspx?id=84178
Black kids who were born during the dying days of apartheid and hit puberty after Nelson Mandela’s release from jail have undergone identity journeys that, like Tracy Chapman’s existential thoughts, need to be shared with the world.
Instead, we bottle them up or restrict their discussion to cappuccino-aided trips down memory lane about school life at multicultural (read: multiracial) schools. This failure to record and grapple with our inner thoughts could result in strands of democratic SA’s social history being lost. We should not let dry academic theses and journal articles about integrated schooling be the sum total of our recorded memories. Lived experiences need to be captured in richer, rougher detail in other forms, such as works of fiction. A sprinkling of works do so, but these barely scratch the surface.
Here is why all this matters.
Some black teenagers and young adults are cultural schizophrenics. This is neither bad nor good. It is just an experiential fact about us. It is a fact to be understood and mulled over. By cultural schizophrenia I mean that we often “code switch”, as the Americans say, between township language and the language of formerly whites-only institutions into which we have been inducted as honorary members. “Language” refers broadly to the values, principles, culture and norms (linguistic ones included) of an institution or a social space.
When I wear my non-township hat, I speak English, speak corporate (or did, before moving into the political and media space), sip exotic wines, travel the world, espouse deeply liberal, individual world views, and am an agnostic who lives in a secure complex in northern Johannesburg in which my neighbours remain strangers some two years after I moved in. This is middle class escapism at its best and worst.
My township self, who only comes out during holidays spent at home in the Eastern Cape, or strained conversations with family members still stuck in the geography that now forms the landscape of my childhood memoirs, speaks Afrikaans, has a fading commitment to Catholicism, is thoroughly working class, knows all his neighbours very well, has a spirit of communalism that is stronger than the selfishness of his coconut alter ego, and has never heard of JM Coetzee nor travelled outside the Eastern Cape.
This cultural schizophrenia is, of course, just a part of the human condition. Multiple selves are present in all people. No doubt psychologists can chip in with academic footnotes that challenge the sense of uniqueness of what I am describing here by demonstrating it to be a general human trait.
But there are at least two important reasons why this South African instance of cultural schizophrenia should interest us. One reason is simply sociological. The novel that has best rehearsed the inner lives of these postdemocratic identities is K Sello Duiker’s The Quiet Violence of Dreams.
Often black families imagine their worldly sons and daughters in the corporate space live glamorous, stress-free lives . This is partly true. Often, however, the cost of multicultural education, and opportunities for personal and professional growth, is dissonance. You straddle two worlds. Only the most unaware coconut would not have a personal moment of quiet reflection when the fiction between herself and her aunties and uncles back in the township jars a cocktail-sipping night out in Sandton. Exploring and recording these narratives is therefore important. They are a source of cultural history.
Second, we will never understand, let alone dismantle, structural inequalities in social and economic spaces if we do not understand the idea of institutional language. Many young black graduates struggle in the corporate space because they are not fluent in the institutional language of the old boys who had decades to stamp their values, principles and language on those spaces before the arrival of democracy. Cultural schizophrenics — invariably black people who went to former Model C schools or private ones — negotiate these spaces better than equally qualified black people who only have a township self.
Cultural schizophrenia has become an economic imperative for blacks. Personal identity politics clearly have a more intimate connection with public space and the private sectors. We cannot afford to lack self-awareness about these social complexities.
http://www.businessday.co.za/articles/Content.aspx?id=84178
Tuesday, October 13, 2009
Court strikes right balance on water for poor people
THE Constitutional Court surprised many of us last Thursday. In the prepaid water case brought by residents of Phiri in Soweto, the court ruled unanimously that providing prepaid water meters and only 6kl of free water a household a month is constitutionally acceptable. The applicants wanted installation of the prepaid water meters declared unconstitutional, or for residents to at least be given a choice between these and contract meters. They also hoped that the municipality would be required to provide 50l of free water a person on the premise that it is necessary for a dignified life. Instead, Judge Kate O’Regan hit each of the applicants’ arguments out of the constitutional park for spectacular legal sixes.
In examining the right of access to sufficient water, the court relied on its own analysis in the Treatment Action Campaign (TAC) and Grootboom cases. In these cases, it held there was a positive burden on the state to take reasonable steps towards the progressive realisation of socioeconomic rights within the available resources. This does not imply that there is a quantifiable, “minimum core” of specific goods that can be enforced by the court. The role of the court is to test the reasonableness of state policies.
This requires a delicate balancing act. The court should not dictate the content of socioeconomic policies. That is the government’s prerogative, and it is desirable because the government has a popular mandate for policy creation, while the courts do not.
Further, the complexities of budget decisions and policy research and review processes are beyond the court’s institutional capacity, but this does not mean that the government has free rein on policy. The court helps to ensure government accountability by allowing citizens to come before it to test state policies against the reasonableness standards mandated by the constitution and developed in constitutional case history.
On the basis of this self-definition of its relationship with other branches of government, the court held in the Phiri case that the right of access to sufficient water needed to be analysed similarly to socioeconomic rights cases such as TAC and Grootboom. It then becomes a question of whether the municipality formulated policies that demonstrably aimed to realise the rights of all residents to access sufficient water progressively.
On the facts before the court, O’Regan’s logic is unanswerable, and would look anti- poor only to someone who failed to read and consider carefully the cogent rationale that it set out.
First, the installation of the prepaid water meters is not unlawful, but coheres with both the bill of rights and municipal by-laws that emanate from the Water Services Act.
Second, the nonpayment culture under apartheid was a morally acceptable form of resistance. Now, however, we need to instil a culture of payment by all to ensure our democratic state is sustainable, while developing interventions to cushion the most vulnerable who cannot easily meet the municipality’s fee structures. The municipality had, in fact, evolved a set of policies in a commendable attempt to do just that.
This is why, for example, means testing was introduced to allow the indigent to get an additional 4kl of free water a month. Such an indigent household, with low additional usage beyond the free supply of water, generally ends up paying less for water and sanitation a month than what it costs the municipality to provide water to these households.
Wealthier citizens also cross-subsidise the poor because the tariff structure for water usage in areas with greater consumption is more onerous than those in poorer areas. So, for example, someone with a prepaid meter using 20kl of water pays R95,80 a month, compared with someone using the same quantity of water on a credit-meter system paying R131,25 a month.
In essence, then, the City of Johannesburg has been a model of how a government agency should continuously research, test, revise and improve its policies. It has struck a balance between its legitimate requirements that all citizens must pay for essential services, while being sensitive to the welfare needs of the most vulnerable by designing a complex service delivery and payment structure that still favours the poor.
If the Constitutional Court demanded blindly that the municipality simply provide more free water to Phiri residences, it would have improperly exerted control over complex budgetary decisions and policy processes that had been shown, at any rate, to be developing progressively.
What, then, are the implications of this case? First, it demonstrates the importance of the Constitutional Court not overreaching its powers. It does not have the institutional capacity or mandate to insert itself gratuitously into policy debates and simply stipulate substantive policy content.
Instead, it needs to hold the government thoroughly accountable by employing the “reasonableness” test. This is a powerful test, so it should not be misconstrued as lacking teeth. The TAC and Grootboom cases showed otherwise.
Second, the court needs to acknowledge reasonable state policy effort where it is demonstrated. In this case, it is appropriate for the City of Johannesburg to be praised.
Third, the case demonstrates the need for social justice litigation to be undertaken more strategically by nongovernmental organisations. This was perhaps not the best first water rights case to go all the way to the Constitutional Court. The municipality made a reasonable effort to provide water access. A clearer case, such as a situation in which citizens did not have access to communal taps within 200m of their living space, for example, would have had a better chance of landing a win.
Human rights lawyers and their nongovernmental institutional friends need to think more carefully about their selection of cases, the timing of judicial activism and the nature and scope of the relief sought.
Fourth, while the constitutional enforcement of socioeconomic rights is an important tool for achieving social justice, other tactics such as political lobbying are underused.
This is not to suggest that we are becoming too litigious as a society, but rather that civil society organisations need to have a more expansive tool kit for achieving their noble goals.
Most importantly, this case begins to settle a question that was raised in the TAC and Grootboom cases. Should we accept a “minimum core” interpretation of socioeconomic rights, or should we accept a “reasonableness test”? The former entails quantifying the content of socioeconomic rights, such as a specified measure of water each of us must get from the government. The court rightly rejected this approach as impossibly complex, favouring instead the reasonableness test. This test allows the court to test policies for the extent to which they progressively realise minimum socioeconomic wellbeing. This is the sensible way forward.
“Minimum core” stipulations can also harm citizens. Fixing the content of socioeconomic rights does not take sufficient account of changes in context.
Ultimately, O’Regan situated the court comfortably between the rock of passively deferring to government policy processes on the one hand and the hard place of subverting the government’s right to make policy on the other. The Constitutional Court’s pro-poor credentials remain intact.
http://www.businessday.co.za/articles/Content.aspx?id=83847
In examining the right of access to sufficient water, the court relied on its own analysis in the Treatment Action Campaign (TAC) and Grootboom cases. In these cases, it held there was a positive burden on the state to take reasonable steps towards the progressive realisation of socioeconomic rights within the available resources. This does not imply that there is a quantifiable, “minimum core” of specific goods that can be enforced by the court. The role of the court is to test the reasonableness of state policies.
This requires a delicate balancing act. The court should not dictate the content of socioeconomic policies. That is the government’s prerogative, and it is desirable because the government has a popular mandate for policy creation, while the courts do not.
Further, the complexities of budget decisions and policy research and review processes are beyond the court’s institutional capacity, but this does not mean that the government has free rein on policy. The court helps to ensure government accountability by allowing citizens to come before it to test state policies against the reasonableness standards mandated by the constitution and developed in constitutional case history.
On the basis of this self-definition of its relationship with other branches of government, the court held in the Phiri case that the right of access to sufficient water needed to be analysed similarly to socioeconomic rights cases such as TAC and Grootboom. It then becomes a question of whether the municipality formulated policies that demonstrably aimed to realise the rights of all residents to access sufficient water progressively.
On the facts before the court, O’Regan’s logic is unanswerable, and would look anti- poor only to someone who failed to read and consider carefully the cogent rationale that it set out.
First, the installation of the prepaid water meters is not unlawful, but coheres with both the bill of rights and municipal by-laws that emanate from the Water Services Act.
Second, the nonpayment culture under apartheid was a morally acceptable form of resistance. Now, however, we need to instil a culture of payment by all to ensure our democratic state is sustainable, while developing interventions to cushion the most vulnerable who cannot easily meet the municipality’s fee structures. The municipality had, in fact, evolved a set of policies in a commendable attempt to do just that.
This is why, for example, means testing was introduced to allow the indigent to get an additional 4kl of free water a month. Such an indigent household, with low additional usage beyond the free supply of water, generally ends up paying less for water and sanitation a month than what it costs the municipality to provide water to these households.
Wealthier citizens also cross-subsidise the poor because the tariff structure for water usage in areas with greater consumption is more onerous than those in poorer areas. So, for example, someone with a prepaid meter using 20kl of water pays R95,80 a month, compared with someone using the same quantity of water on a credit-meter system paying R131,25 a month.
In essence, then, the City of Johannesburg has been a model of how a government agency should continuously research, test, revise and improve its policies. It has struck a balance between its legitimate requirements that all citizens must pay for essential services, while being sensitive to the welfare needs of the most vulnerable by designing a complex service delivery and payment structure that still favours the poor.
If the Constitutional Court demanded blindly that the municipality simply provide more free water to Phiri residences, it would have improperly exerted control over complex budgetary decisions and policy processes that had been shown, at any rate, to be developing progressively.
What, then, are the implications of this case? First, it demonstrates the importance of the Constitutional Court not overreaching its powers. It does not have the institutional capacity or mandate to insert itself gratuitously into policy debates and simply stipulate substantive policy content.
Instead, it needs to hold the government thoroughly accountable by employing the “reasonableness” test. This is a powerful test, so it should not be misconstrued as lacking teeth. The TAC and Grootboom cases showed otherwise.
Second, the court needs to acknowledge reasonable state policy effort where it is demonstrated. In this case, it is appropriate for the City of Johannesburg to be praised.
Third, the case demonstrates the need for social justice litigation to be undertaken more strategically by nongovernmental organisations. This was perhaps not the best first water rights case to go all the way to the Constitutional Court. The municipality made a reasonable effort to provide water access. A clearer case, such as a situation in which citizens did not have access to communal taps within 200m of their living space, for example, would have had a better chance of landing a win.
Human rights lawyers and their nongovernmental institutional friends need to think more carefully about their selection of cases, the timing of judicial activism and the nature and scope of the relief sought.
Fourth, while the constitutional enforcement of socioeconomic rights is an important tool for achieving social justice, other tactics such as political lobbying are underused.
This is not to suggest that we are becoming too litigious as a society, but rather that civil society organisations need to have a more expansive tool kit for achieving their noble goals.
Most importantly, this case begins to settle a question that was raised in the TAC and Grootboom cases. Should we accept a “minimum core” interpretation of socioeconomic rights, or should we accept a “reasonableness test”? The former entails quantifying the content of socioeconomic rights, such as a specified measure of water each of us must get from the government. The court rightly rejected this approach as impossibly complex, favouring instead the reasonableness test. This test allows the court to test policies for the extent to which they progressively realise minimum socioeconomic wellbeing. This is the sensible way forward.
“Minimum core” stipulations can also harm citizens. Fixing the content of socioeconomic rights does not take sufficient account of changes in context.
Ultimately, O’Regan situated the court comfortably between the rock of passively deferring to government policy processes on the one hand and the hard place of subverting the government’s right to make policy on the other. The Constitutional Court’s pro-poor credentials remain intact.
http://www.businessday.co.za/articles/Content.aspx?id=83847
Friday, October 9, 2009
Obama's Nobel Peace Prize is surely premature?
I'm a self-confessed Obama fan. The man remains a charismatic darling in my eyes, and despite the novelty of his blackness in the whiteness of the, uhm, White House having worn off, I still think - hope, wishes - that he will have a successful term as president, not least because, yes, I do wish the first black US president to be a success, a BLACK success story- there, I've said it :) BUT ... this is NO REASON for those, likeminded, like the Norwegian Nobel Committee, clearly, to get ahead of themselves.Obama has simply done NOTHING to justify the award of Nobel Peace Prize...by his own admission, too.
I just read through the Committee's text that briefly sets out its reasons, and it is patently unconcinving. It refers to Obama's amazing work on a number of fronts: 1) general multilateralism being restored, in particular the role of the UN; 2)great strides having been made, apparently, in reducing global nuclear armament; 3) the US's role in being a human rights beacon is being restored; 4) climate change leadership from the US being aMAzing; and - for kicks - 5) Obama being inspirational.
The only claim here that is true, at this point, is 5) - and even then only if you do not speak to Republican Americans :) The other reasons are a wish list, not reality.
1. The UN has yet to restore it's credibility. The day it is able to reign in countries like Iran or Zim more effectively, we can buy this claim. Security Council reform would help too.
2. Global nuclear disarmanent remains a goal only.
3. The US is not a human rights champion - *cough* Guantanamo *cough*
4. We need to wait until the Denmark negotiations to see if a decent replacement for Kyoto Protocol is found - and the US can start by NOT being one of the worst polluters: that would be leadership.
If this award is one intended to inspire Obama and the US to get to where the committee thinks they already are, then ok - but I'm not sure that should be the aim of the award, and if it is, let's be honest about the fact that it is an incentive, an encouragement and not so much a prize for achievements that are already on record.
I just read through the Committee's text that briefly sets out its reasons, and it is patently unconcinving. It refers to Obama's amazing work on a number of fronts: 1) general multilateralism being restored, in particular the role of the UN; 2)great strides having been made, apparently, in reducing global nuclear armament; 3) the US's role in being a human rights beacon is being restored; 4) climate change leadership from the US being aMAzing; and - for kicks - 5) Obama being inspirational.
The only claim here that is true, at this point, is 5) - and even then only if you do not speak to Republican Americans :) The other reasons are a wish list, not reality.
1. The UN has yet to restore it's credibility. The day it is able to reign in countries like Iran or Zim more effectively, we can buy this claim. Security Council reform would help too.
2. Global nuclear disarmanent remains a goal only.
3. The US is not a human rights champion - *cough* Guantanamo *cough*
4. We need to wait until the Denmark negotiations to see if a decent replacement for Kyoto Protocol is found - and the US can start by NOT being one of the worst polluters: that would be leadership.
If this award is one intended to inspire Obama and the US to get to where the committee thinks they already are, then ok - but I'm not sure that should be the aim of the award, and if it is, let's be honest about the fact that it is an incentive, an encouragement and not so much a prize for achievements that are already on record.
Long, hard road ahead to journalistic excellence
THE quality of public discourse in SA is poor. Simply scan the letters and opinion pages of major newspapers, observe presentations and discussions at conferences on the university circuit, or sit through current affairs programmes on radio or TV.
There are a number of reasons for this: a web of problems in our education system; deep income inequality that shapes the individual learning experience; and a South African penchant for substituting reasoned debate with attributions of malicious motives, often based on race or class.
Precisely because the reasons are so complex, improving the standard of public discourse won’t be easy. But one entity we can hold to account immediately is the media.
A little intellectual curiosity from journalists would go a long way to solving the problem. We need not wait for structural changes to the education system or improved socioeconomic indices to produce legions of intellectuals. Indeed, the media can help us attain these levels of education by improving the quality of their reportage and analysis that are offered to the public.
Many media professionals have tried to convince me that local readers, listeners and viewers are the ones lacking in curiosity. But that, surely, is thoughtless projection at best. It does not justify pedestrian analysis.
Of course, one needs to take account of the context within which a piece of writing or broadcasting content is produced. But I do not believe the condescending assumption that the average South African lacks the attention span to read at least one essay- length piece of social or political analysis a week.
I take issue with the unspoken editorial assumption that a piece of writing that is of a standard good enough for top international publications such as the Times Literary Supplement or New York Times has no place in any of our top dailies or weekend newspapers. This assumption that local readers lack intellectual curiosity says less about the attention span or thirst for analysis of the local reader, listener or viewer than it does about the lack of intellectual curiosity of local media professionals.
Journalists mask their intellectual vices by internalising the lie that those consuming their ideas share these character flaws.
To be fair to the print media, broadcasting is in much worse shape. This is, of course, partly due to the fact that decent, if dry, comment from local celebrity academics sneaks into the odd newspaper comment space; and week-old content from The Guardian or Los Angeles Times, or some other paid-for portal of old international essays, gets republished in our weekend newspapers as a convenient substitute for local content. Has-been politicians, milked for the sales value of their bylines even when they have little fresh to say, complete the comment space.
Reportage, on the other hand, is mostly lacking in analytic content, although a few investigative journalists sometimes produce award-winning stories.
Broadcasting is more honest about its mediocrity. If I were an international investor looking for political risk analysis of southern Africa, South African news or political anchors would be the last people I would turn to. Our news and current affairs teams on radio and television lack that kind of gravitas.
It is little wonder that they mostly generate second-hand content that is picked up from newspapers and magazines. Even programmes such as Special Assignment and SAfm’s After 8 Debate have lost their legendary bite.
Journalists should start to read more widely, and do better primary research. The pressure of deadlines is real, but is no excuse for not reading widely and thinking hard. One cannot sit in Auckland Park or Rosebank and know what it is that protesters in Mpumalanga think. Nor can a young journalist, even with his baby face caked in Maybelline make- up, complete with Model C enunciation, “live from the scene”, give us the true, hidden facts and insights of a complex story by simply pulling the closest local towards the cameras for a pseudo-interview. This is not to suggest that immediate, and continuous, news coverage is unimportant. But there is not sufficient balance between these minute-by- minute broadcasts and more carefully researched, broadcast packages.
Call me the colonial victim of an English sojourn, but I would love to one day wake up to a morning radio programme in SA that sets the news and current affairs agenda in a similarly powerful manner as does, for example, the British Broadcasting Corporation’s Radio 4 slot, The Today Programme. The key difference between it and SAfm’s AM Live? Again, intellectual curiosity. Intellectual curiosity means reading widely, doing primary research, thinking carefully about your argument, and soliciting — demanding — critical feedback and coaching from peers.
We cannot regard a typo-free piece of writing as the ideal (and, even then, an ideal at any rate routinely ignored by many editors and sub-editors), nor a 30-second audio insert devoid of “ums”, as articulate and compelling.
The road to journalistic excellence is necessarily tough.
McKaiser (www.safferpolitics.co.za) is a political and social analyst at the Centre for the Study of Democracy.
http://www.businessday.co.za/articles/Content.aspx?id=83543
There are a number of reasons for this: a web of problems in our education system; deep income inequality that shapes the individual learning experience; and a South African penchant for substituting reasoned debate with attributions of malicious motives, often based on race or class.
Precisely because the reasons are so complex, improving the standard of public discourse won’t be easy. But one entity we can hold to account immediately is the media.
A little intellectual curiosity from journalists would go a long way to solving the problem. We need not wait for structural changes to the education system or improved socioeconomic indices to produce legions of intellectuals. Indeed, the media can help us attain these levels of education by improving the quality of their reportage and analysis that are offered to the public.
Many media professionals have tried to convince me that local readers, listeners and viewers are the ones lacking in curiosity. But that, surely, is thoughtless projection at best. It does not justify pedestrian analysis.
Of course, one needs to take account of the context within which a piece of writing or broadcasting content is produced. But I do not believe the condescending assumption that the average South African lacks the attention span to read at least one essay- length piece of social or political analysis a week.
I take issue with the unspoken editorial assumption that a piece of writing that is of a standard good enough for top international publications such as the Times Literary Supplement or New York Times has no place in any of our top dailies or weekend newspapers. This assumption that local readers lack intellectual curiosity says less about the attention span or thirst for analysis of the local reader, listener or viewer than it does about the lack of intellectual curiosity of local media professionals.
Journalists mask their intellectual vices by internalising the lie that those consuming their ideas share these character flaws.
To be fair to the print media, broadcasting is in much worse shape. This is, of course, partly due to the fact that decent, if dry, comment from local celebrity academics sneaks into the odd newspaper comment space; and week-old content from The Guardian or Los Angeles Times, or some other paid-for portal of old international essays, gets republished in our weekend newspapers as a convenient substitute for local content. Has-been politicians, milked for the sales value of their bylines even when they have little fresh to say, complete the comment space.
Reportage, on the other hand, is mostly lacking in analytic content, although a few investigative journalists sometimes produce award-winning stories.
Broadcasting is more honest about its mediocrity. If I were an international investor looking for political risk analysis of southern Africa, South African news or political anchors would be the last people I would turn to. Our news and current affairs teams on radio and television lack that kind of gravitas.
It is little wonder that they mostly generate second-hand content that is picked up from newspapers and magazines. Even programmes such as Special Assignment and SAfm’s After 8 Debate have lost their legendary bite.
Journalists should start to read more widely, and do better primary research. The pressure of deadlines is real, but is no excuse for not reading widely and thinking hard. One cannot sit in Auckland Park or Rosebank and know what it is that protesters in Mpumalanga think. Nor can a young journalist, even with his baby face caked in Maybelline make- up, complete with Model C enunciation, “live from the scene”, give us the true, hidden facts and insights of a complex story by simply pulling the closest local towards the cameras for a pseudo-interview. This is not to suggest that immediate, and continuous, news coverage is unimportant. But there is not sufficient balance between these minute-by- minute broadcasts and more carefully researched, broadcast packages.
Call me the colonial victim of an English sojourn, but I would love to one day wake up to a morning radio programme in SA that sets the news and current affairs agenda in a similarly powerful manner as does, for example, the British Broadcasting Corporation’s Radio 4 slot, The Today Programme. The key difference between it and SAfm’s AM Live? Again, intellectual curiosity. Intellectual curiosity means reading widely, doing primary research, thinking carefully about your argument, and soliciting — demanding — critical feedback and coaching from peers.
We cannot regard a typo-free piece of writing as the ideal (and, even then, an ideal at any rate routinely ignored by many editors and sub-editors), nor a 30-second audio insert devoid of “ums”, as articulate and compelling.
The road to journalistic excellence is necessarily tough.
McKaiser (www.safferpolitics.co.za) is a political and social analyst at the Centre for the Study of Democracy.
http://www.businessday.co.za/articles/Content.aspx?id=83543
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