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Publication Details

Reference
Mbali, Mandisa & Devenish, Annie  (2004) A Review of Zackie Achmatís Wolpe Memorial Lecture Ten Years of South Africaís Democratic ConstitutionCentre for Civil Society  Wolpe Lecture series : 1-6.

Summary
Annie Devenish and Mandisa Mbali

Introduction

Zackie Achmat, the leader of the Treatment Action Campaign (TAC), spoke at the Centre for Civil Societyís first Harold Wolpe Memorial lecture for 2004. Achmat is famous for his passionate advocacy for wider access to HIV treatment in South Africa and globally. In 2003, the American Society of Friends nominated both TAC and Achmat for the Nobel Peace Prize. More recently, TAC scored a major political victory when the South African Cabinet acceded to one of the social movementsí key demands and instructed the Ministry of Health to develop a Comprehensive National HIV and AIDS, Prevention, Treatment and Care Plan.

Strategic use of South Africaís Constitutional provision for the right to access to health care has always been key to TACís campaigns. As South Africa moves towards celebrating ten years of a constitutional democracy, it was apt that such a high-profile civil society leader discussed the use of the constitution as a tactic to engage with the government on development issues. Achmatís rich and engaging talk raised important critique from the audience on the limitations of the Constitution at a tool for civil society to advance socio-economic justice. While we have great admiration for TACís success in using the Constitution to advance the rights of people living with HIV/AIDS to access HIV treatment, we question whether this strategy will be automatically replicable for other social movements advancing socio-economic rights. In this review, the authors summarise Achmatís talk, the interesting critiques from the floor and offer our own critical analysis of the lecture and discussion which followed it.

Achmat on the immediate future of the TAC

Before moving on to discuss the broader potential of using South Africaís Constitution for civil society campaigns based on socio-economic rights, he briefly discussed progress with TACís campaign for wider treatment access. Achmat is one of the most prominent HIV/AIDS activists living openly with HIV. He began his talk by speaking about his own daily struggle living with HIV and both the benefits and difficulties of being on combination antiretroviral drug therapy (HIV treatment). For many years Achmat took the courageous step of refusing to start HIV treatment until the government made such treatment available to all South Africans living with HIV. His health deteriorated over time and eventually there was a unanimous resolution at TACís 2003 National Congress urging Achmat to begin HIV treatment, so that he could continue to provide leadership in the campaign for all South Africans living with HIV to have access to HIV treatment. He said that HIV treatment has changed his life enabling him to be more physically, intellectually and socially active. However, he recently had to change his drug cocktail due to side effects he experienced.

He then moved from discussing his personal experience of the benefits of HIV treatment for people living with HIV/AIDS to discussing the movement he heads for all people living with HIV/AIDS to have access to HIV treatment. He urged the public to participate in TACís activities and support the organisation. While the government had developed a roll-out plan, the plan had yet to be implemented in all provinces except the Western Cape. The main sticking point at present is that government has not expedited the drug procurement process. According to Achmat, TAC intends to keep pressure on the government to implement this plan with utmost urgency.

Achmat on how civil society can strategically use the Constitution

Achmatís talk then broadened to explore the way in which civil society, in general, can take new and old struggles for human rights forward in the post-apartheid period using the Constitution. TAC most famously and successfully used the Constitution in its groundbreaking case against the government for the expansion of the use of Nevirapine to prevent mother to child transmission (PMTCT). It is obvious that this experience has informed Achmatís optimism on the Constitutionís potential as a to realise key socio-economic rights.

Ten years ago South Africa became a constitutional democracy, which recognised all its citizens as being equal before the law. Achmat argued that the end of apartheid delivered a deathblow to racism around the world and that its effects will be felt for years to come. However, he also argued that institutional and individual racism continue, even in post-apartheid South Africa. For him this was most clearly evident in public services as it is still the case that most people who use impoverished public services are Africans, Coloureds and Indians.

The improvement of public services in terms of accessibility and quality was of key importance to Achmatís vision of public services over the next ten years of South African democracy. Firstly, his vision included the creation of a decent unified public health service. He emphasised disparities between the public and private sectors of the health system and how private health care was increasingly becoming unaffordable for many South Africans. Secondly, he argued that South Africa needs a decent social security system including a Basic Income Grant (BIG).

The authors of this review note that the BIG campaign fits with TACís vision of a social democracy where the rights of the weakest in society such as the poor and unwell are defended by the Constitution. Social grants research has shown that receiving grants is often the only factor which prevents a poor household from falling into total destitution.

The lecturer then moved on to discuss other aspects of his future vision for South African democracy including: a safe and reliable public transport system; a skilled labour force; the provision of quality education; economic development; safe streets and communities and the opening of borders to allow for free movement of people and capital.

He then outlined different court cases where elements of this vision have been contested and put at stake. Unfortunately, for Achmat, not enough civil society organisations had used to courts to their full potential to realise human rights and those who have used the courts have not always been as successful as TAC.

For Achmat, there was no contradiction between being a loyal ANC member and, simultaneously, being critical of some of the governmentís policies. He said that he believed that the ANC was the most important contemporary political institution in South Africa because it embodied the aspirations of the poor and has played a critical role in the countryís liberation. On the other hand, he also criticised the African National Congress (ANC) government for having failed to take the Constitution seriously in several important instances. He also emphasised that there was a disjuncture between the Constitution, which guarantees human rights, including socio-economic rights, and a government bureaucracy which was still inadequately geared towards delivery.

He also noted two disturbing trends in the political culture of the ANC: it had both Stalinist and patriarchal tendencies. The Stalinist tendency was best characterised by prominent South African Communist Party figure Jeremy Cronin as having dumped Marxism but kept Stalinism. He felt there was a need for more internal democracy within the ANC in that it needed to engage more with criticism. Achmat also noted a patriarchal culture of deference to old men in the party. The true test of loyalty within the ANC needed to be the ability to tolerate internal and external criticism: ANC members should not be made to feel disloyal if they criticised the party or the governmentís policies and practices.

He saw the need for a new generation of activists armed with comprehensive knowledge of both global and local issues and a range of disciplines relevant to contemporary social justice activism such as the law, politics and science. Ultimately, Achmatís vision was to realise a human rights culture in our society through democratising old institutions and forcing the government to take the Constitution seriously through using the legal space that was open to citizens and civil society organisations in our new democracy. He argued that only if the organisations of the poor and working class mobilised around the Constitution, could socio-economic justice be realised.

Critical questions and comments from the floor

During question time a number of animated and pertinent questions came from the floor. Two interrelated questions raised somewhat valid left-wing critiques of Achmatís arguments for the need progressive organisations to have engaged in partnership with the government through critical support for the ANC.

Firstly, Xolani Shange, a graduate philosophy student at the University of KwaZulu-Natal, accused Achmat of having had illusions that the ANC could be transformed into a genuinely democratic institution of the poor and working class. For Shange, in reality the party was anti-working class and in favour of enriching a few through policies such as black economic empowerment. Shange argued that the liberal, democratic Constitution which Achmat saw as an instrument for the emancipation of the poor and working class was in reality built within a capitalist paradigm and that the legal system of which the Constitution is an integral part favoured the middle class and the wealthy.

Secondly, Ashwin Desai, an honorary research fellow at the Centre for Civil Society and a lecturer at the Workersí College in Durban, raised a similar critique of Achmatís argument for constructive but critical engagement with the ANC. Desai said that other social movements such those opposed to cost-recovery-related water cut-offs in Durban had on occasion used the courts and not received judgements that favoured the rights of the poor and marginalized. Whereas Achmat felt that with the right political and legal strategies social movements could successfully use the courts in the way TAC had in the past, Desai contended that Achmat had not taken into account how socio-economic and political inequality could undermine the supposed objectivity and fairness of the South African justice system. Desai felt the Constitutional Court was only as good as the men and women who sat on its bench and that these individuals could be biased and their appointments could be shaped by powerful institutions in society such as the ANC government.

Achmatís rebuttal of critical comments from the floor

Achmat responded by saying that he had illusions of the Constitution but then in the past he had also had illusions of the liberation movementís Freedom Charter, which had been partially realised in post-apartheid democratic South Africa. Moreover, he thought that elements of the Freedom Charter had been realised in the countryís post-apartheid Constitution and this meant that socio-economic and political justice in South Africa could be advanced in ways which were impossible under apartheid. TAC had shown that the law can be used strategically by civil society for progressive purposes but without social mobilisation the law was useless to address the real material suffering of ordinary people. He emphasised that the cheap sloganeering characteristic of Ďold ideologiesí was ineffective in combating local and global inequalities. What was needed was a new generation of progressive activists prepared to engage beyond these slogans finding practical and innovative ways to transform marginalized peopleís lives.

He contrasted Shangeís arguments that the capitalist system must be abolished to realise any kind of socio-economic justice for the poor with TACís strategy which is to use all peaceful strategies at its disposal to save lives. For Achmat, when lives are at stake, immediate results through social mobilisation using the law are often more effective and practical than waiting for a nebulous Ďrevolutioní to occur before pushing for such results on concrete issues such as HIV treatment access. He concluded the lecture by arguing that a moral consensus was needed for change in order for civil society organisations to form alliances to fight political and socio-economic injustices.

Our critiques of Achmatís talk

The authors were very impressed by Achmatís talk, however, we agreed with some of the sentiments expressed from the floor. For instance, Achmat use of the Congress of South African Trade Unionsí (COSATU) anti-privatisation strike as an example of how cheap sloganeering of old ideologies merely alienates the general public sets up a false dichotomy between privatisation and the improvement of public services, when in reality they are related issues. Privatisation and related cost-recovery policies often undermine public services by raising the cost of service provision and thereby deny the poor access to public services on the basis of their inability of pay for such services.

Indeed, Achmatís own arguments in the body of his lecture showed how the private sector of the health system leads to inequality in health care provision: a small minority of fee paying wealthy patients spend as much on health as the state spends on health care provision of the majority of the poor. This means that while a wealthy few access private Ďfirst worldí health care, the vast majority of South Africaís poor only have access to a vastly overburdened and under-funded public health system.

Moreover, although Achmat argued that civil society should strategically use the legal space opened up to them in the post-apartheid South African Constitution, he did not take into account the significant barriers preventing ordinary people from effectively accessing and using the Constitutional Court. Firstly, the poor are often not even fully aware of their rights and how they can seek assistance when they are violated. Secondly, such court action is expensive, as it requires the assistance of highly specialised legal counsel.

Conclusions

Social mobilisation of the law, as suggested in Achmatís lecture and in TACís political and legal strategies, will only become be actualised if a broader range of civil society organisations are able overcome these practical barriers to legal action using the Constitution. The lecture and the discussion it provoked provided fascinating insights into the challenges of using the law as a tool of activism for realisation of socio-economic and political rights. It remains to be seen whether TACís successes in human rights based activism using the Constitution can be replicated by other new social movements.

Achmatís inspiring and engaging lecture, which raised such important and fruitful critique raised important questions about what it will take to make the Constitution a living document which protects to rights of the rights of all South Africans. TACís legal and political successes provide a powerful example to other social movements of the potential, strategic uses of our Constitution. The challenge remains of how to create the conditions to replicate TACís success in using the Constitution to advance socio-economic justice in other critical areas, as South Africa moves into its second decade of democracy.


The authors of this review write in their personal capacity.

*Annie Devenish is a researcher at the School of Development Studies, University of KwaZulu-Natal.

**Mandisa Mbali is the Research Co-ordinator at the Enhancing Care Initiative KwaZulu-Natal Plus at the Nelson R Mandela School of Medicine at the University of KwaZulu-Natal.

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