ABSTRACT
Almost a quarter of a century since South Africa became a constitutional democracy, the pervasiveness of the concept of “rights” as protected by the constitution has not led to all citizens and residents feeling empowered and secure. While poor South Africans may attribute the ineffectiveness of these protections to systemic factors such as slow transformation and corruption, some (perhaps even many) assign ultimate blame to “rights” themselves, and the constitution. One possible explanation for this is that the rights discourse that has taken root in the public imagination in South Africa has overpromised and underdelivered. The promised “transformative constitutionalism” has not delivered nearly as much transformation as was hoped or expected, and very slowly at that. Another potential explanation is that the rejection of “rights” – and, more broadly, the constitution – based on arguments of cultural relativism is a reflection of the failure of the drafters of the South African Constitution to adequately “vernacularize” rights. A final explanation posited in this chapter is that “rights” under the South African Constitution have become so hegemonic that ordinary people have been given the impression (whether intentionally or unintentionally) that, unless their struggles can be articulated in the precise terms of a “case” made on the basis of a “rights” violation, they are not visible, valid, or legitimate. What these hypotheses together suggest is that, while rights are not inherently disempowering (and actually hold tremendous potential for helping people feel empowered), litigation should not be the primary tool accompanying their mobilization. More importantly still, arguably, for rights to reach their maximal effect, ordinary people must feel that rights are not fixed and final, or imposed from the top down, but derive much of their content, parameters, and power from the voices and needs of those who struggle from below. Finally, it is self-evident that the task of vernacularizing rights and radically transforming the legal order to make the South African legal system a true reflection of the country’s diverse people(s) is urgent.
