WHAT’s the best way of achieving meaningful reform?
August 04, 2009 Edition 1
Steven Robins – Cape Times
Azapo’s Mosibudi Mangena has questioned whether the recent service delivery protests are a sign of political consciousness or depoliticisation (Cape Times, July 27).
For Mangena, post-apartheid state promises of free water, electricity and housing can only lead to citizens becoming passive and dependent clients of a paternalistic state.Mangena argues that this is not a sign of freedom but rather “a prison called delivery”. So has the heroic anti-apartheid struggle for freedom morphed into this poverty of politics?
The post-Cold War era that began with the collapse of the Soviet Union also led to profound doubts about all grand narratives of politics, progress and development.
Without these meta-narratives to believe in, many progressive scholars and activists despaired about the direction politics was taking.
For some it seemed as if the triumphalism of neoliberal capitalism had ushered in conspicuous consumerism and the downsizing of the welfare state alongside deeply entrenched forms of structural unemployment, inequality and poverty. Many critical commentators in the West also claimed that “we” were now doomed to live in a post-political world characterised by the demise of the collective, class-based politics of trade unions and revolutionary movements.
These critics were also deeply suspicious of what they regarded as the meaningless electoral rituals of liberal democracies. Citizens, they argued, had, not surprisingly, become apathetic and cynical about politics and politicians.
At the same time, scholars such as Wendy Brown argued that recourse to the courts was becoming the only remedy in situations of social injury. For Brown and others, the problem with litigation was that it contributed towards individualising, depoliticising and fragmenting social and economic issues.
Or, as some have put it, class action had replaced class struggle.
But is it such a zero-sum game between litigation and collective action? Are citizens the passive victims of these depoliticising processes, or is there something potentially progressive and empowering about “rights talk” and “the law”?
Our constitution has been praised for being one of the most progressive on the planet. Its promotion of sexual and gender equality, as well as its recognition of cultural, linguistic and socio-economic rights, has been lauded inside as well as outside the country.
Many South Africans take enormous pride in the constitution and zealously protect it from threats. Nonetheless it has become increasingly clear that constitutionally enshrined rights can be very hard to realise. This is especially the case for poor people, for whom “rights” and “the law”seem to be particularly remote and elusive.
Over the past couple of weeks there has been debate over the merits and disadvantages of communities and social movements resorting to litigation in their struggles over access to basic services.
Mike Muller, the former director-general of Water Affairs and Forestry, recently argued that the resort to water rights litigation by NGOs and communities opposing prepaid water meters and automatic disconnections undermined possibilities for effective political action.
This view was challenged by Jackie Dugard, Wits University researcher and member of the legal team representing the Mazibuko community in their water rights case against the City of Johannesburg. Dugard argued that, contrary to Muller’s dismissal of rights-based approaches, in contexts of unaccountable and inefficient local government structures, litigation can be effective in compelling the government to provide adequate services to the poor. Litigation, in other words, may be necessary where other forms of political engagement are less likely to succeed.
However, she acknowledged that recourse to the courts requires resources and institutional support. Dugard’s analysis implies that under certain conditions “lawfare” may be more strategic than popular protest and public violence, which she refers to as political “warfare”.
During the past decade, South Africa has witnessed an increase of “service delivery” protests in poor communities. During this period, there has also been the emergence of new social movements that use both mass mobilisation and litigation to address problems of access to basic services.
For example, civic organisations such as the Soweto Electricity Crisis Committee, the Anti-Evictions Campaign, AbahlalibaseMjondolo, and the Anti-Privatisation Forum have taken to the courts and the streets to challenge water and electricity disconnections and evictions. During the same period, the Treatment Action Campaign (TAC) has fought struggles for Aids treatment in the Constituional Court as well as in the townships, universities, workplaces, and the media.
Unlike the “big politics” of revolutionary socialism and labour movements, new social movements such as the TAC aspire to smaller political acts and less monumental victories. In many cases these movements simultaneously use the courts and the streets to shame, lobby and pressure the state to respond more effectively towards improving the lives of the poor.
This pragmatic rights-based politics blurs and implodes the conventional political binaries of Left and Right, socialism and neoliberalism, revolution and rights. But does it offer possibilities for progressive politics? The extraordinary achievements of the TAC in recent years illustrate how litigation and rights-based approaches can, under certain conditions, contribute towards addressing broader questions of social justice.
One has only to reflect on the successes of the Legal Resources Centre during the anti-apartheid struggle to recognise that rights-based approaches can, along with mass mobilisation, contribute to progressive political outcomes.
Yet it also cannot be denied that the groundbreaking Grootboom Constituional Court ruling that recognised socio-economic rights to housing ended up being a pyrrhic victory for the primary litigant, Irene Grootboom, who died last year while still living in a shack in Wallacedene, Cape Town. In other words, socio-economic rights and litigation can mean very little without a responsive and capacitated state and mobilised citizens.
Legal solutions can also have unintended consequences.
For instance, in a 1995 study of the impact of agricultural labour courts that were introduced in terms of the Extension of Security of Tenure Act, Andries du Toit and I found that this progressive labour law initiative resulted in the eviction of large numbers of Western Cape farm workers. As soon as farm workers laid a complaint against a particular farmer they were evicted and blacklisted by white farmers in the area, making it difficult to find work. Clearly, rights and litigation do not always produce the anticipated progressive outcomes.
Activists are often quick to learn when legal strategies work and when other methods are required.
For instance, the young Nelson Mandela’s training as a lawyer, and his respect for the rule of law, did not prevent him from resorting to militant trade unionism and armed struggle. He was able to combine rights-based politics with philosophical and political influences ranging from Gandhi to Nehru to Fanon. This eclecticism has in fact been part of the ANC political culture for many decades, notwithstanding the predominance of Africanist and socialist ideological orientations within the organisation.
The TAC has successfully used the courts, the media, global support networks and grassroots mobilisation in the townships to lobby and pressure global pharmaceutical giants and the South African government to put measures in place for the provision of Aids treatment in the public health system.
In these David and Goliath battles, the TAC operated simultaneously on local, national and global scales. Its tactical use of both litigation and mass mobilisation was also reminiscent of popular struggles against apartheid’s influx control laws and forced removals. Whereas critics of rights-based social movements accuse these organisations of depoliticising and individualising social causes, the TAC has been capable of deploying “rights talk” and litigation alongside grassroots mobilisation with remarkable success.
The TAC’s engagement with a devastating Aids crisis in South Africa is very instructive. It reveals a highly contingent and improvisational politics that refuses to get bogged down in conventional oppositions and antagonisms between Left and Right, revolution and rights, state and civil society. For example, at one moment the TAC partnered the government in a legal challenge to the global pharmaceutical industry over the question of ARV generics and intellectual property rights; the next moment it was in court challenging the government for failing to implement ARV treatment within the public health sector. And now it is back to working with the new ANC government in order to monitor and pressure the government to expand and improve ARV treatment and conditions in the broader public health system.
The TAC’s rights-based approach not only challenged the state and the global pharmaceutical industry in the quest for HIV treatment for poor and working class people, it also involved profound transformations of the identities of its members.
In many cases the TAC has managed to transform the potentially lethal stigma of Aids into a badge of courage. Life after diagnosis with HIV seemed to have more meaning for many activists than it did before they tested positive.
Rather than producing docile patients and biomedical subjects, the organisation created highly politicised activists who understood their role as the foot soldiers of a globally connected, working class health movement.
Ideas, practices and technologies – development, liberal democracy, rights and “the law”, for instance – can be put to many purposes, sometimes progressive and sometimes not. There is nothing inherent in these ideas and technologies that preordains particular outcomes.
For TAC activists, this has meant that litigation in the highest courts has had to be accompanied by mass mobilisation in the streets.
For housing activists, however, the Grootboom Constitutional Court victory was clearly insufficient and the Irene Grootbooms of the world continue to live and die in shacks without adequate basic services.
Yet it is equally unclear whether popular protests and public violence on their own will achieve better outcomes in terms of service delivery.
Litigation and mass mobilisation need to be analysed in terms of their particular conditions of possibility; only this will reveal whether particular rights-based approaches and modes of collective action lead to successful and progressive outcomes or not.
# Robins is professor in the Department of Sociology and Social Anthropology at the University of Stellenbosch. His recently published book, Revolution to Rights in South Africa: Social Movements, NGOs and Popular Politics (James Currey & UKZN Press) investigates the limits and possibilities of rights-based politics.
The book will be launched at The Book Lounge, 71 Roeland Street, 5.30pm tomorrow.