Neither Adopted nor Borrowed: A Critique of the Conception of the South African Bill of Rights

Felix Dube

doi:10.17159/1727-3781/2020/v23i0a8794

Abstract

The failure of the post-apartheid government to deliver on some of the promises of the South African Bill of Rights, coupled with the appropriation of the Bill of Rights by the international human rights movement, create the impression that the Bill of Rights is a neo-liberal instrument which is irrelevant to the needs of South Africans and the realities of their circumstances. If the people of South Africa are convinced that the Bill of Rights embraces a Western agenda more than it expresses their collective aspirations, it will lose its legitimacy. While acknowledging that the conception of the Bill of Rights is contested between the international human rights movement and some South Africans, this article shows that the Bill of Rights was neither adopted nor borrowed from the international human rights movement. South Africans did not assimilate the International Bill of Rights but conceived their own Bill of Rights in the early decades of the 20th Century. The conception of the South African Bill of Rights was a response to colonialism and apartheid and was not a consequence of tutelage by the international human rights movement.

Highlights

The international human rights movement views the South African Bill of Rights as one of its most remarkable achievements.1 The desire of the international human rights movement to claim credit for progress in human rights in South Africa is not surprising, considering the strides made by the state in the protection, respect and promotion of human rights since the abolition of apartheid
In the context of this work, the human rights movement refers "to that collection of norms, processes, and institutions that traces its immediate ancestry to the Universal Declaration of Human Rights."12 The international human rights movement encompasses persons and organisations that contributed to the commitment of the United Nations to adopt the rights embodied in the principal instruments which comprise the International Bill of Rights, namely the UDHR, the ICCPR and the ICESCR.13
This section discusses the genesis of the local human rights movement in South Africa to show that contrary to the claims of the international human rights movement, South Africans who lived under colonial rule conceived human rights with the formation of the South African Native National Congress in 1912.33 The section proves that the South African human rights movement was born for two purposes – liberation from colonial rule and the attainment of a democratic system of government based on the free will of the governed

Summary

Introduction

The international human rights movement views the South African Bill of Rights as one of its most remarkable achievements. The desire of the international human rights movement to claim credit for progress in human rights in South Africa is not surprising, considering the strides made by the state in the protection, respect and promotion of human rights since the abolition of apartheid. The failure of the post-apartheid state to deliver on some of the most important promises of the Bill of Rights, coupled with the appropriation of the Bill of Rights by the international human rights movement, creates the impression that the Bill of Rights is Eurocentric and irrelevant to the needs of South Africans.. The section illustrates that despite the momentum of the international human rights movement in the last half of the 20th Century, South Africans continued to charter the path for a Bill of Rights independent of the global human rights movement. The fifth section focusses on the formal adoption of the Bill of Rights in both the transitional and final Constitutions to show the influence of the International Bill of Rights at that stage. The fifth section illustrates the application of the International Bill of Rights under the South African Constitution

The global human rights movement in the South African context

The conception of the local human rights movement in South Africa

The South African human rights movement after the adoption of the UDHR

The birth of the South African Bill of Rights

Conclusion

Literature