Tales from South Africa - Constitutional Hill

Constitutional Hill in Johannesburg is far more significant than it looks at first glance. The main complex houses the active South African Constitutional Court which is located in an inner chamber, to access which one needs to go through a central hallway decorated with South African art and several paintings synonymous with the birth of the European modern art movement in the late 19th century which have been acquired by the South African government at great cost over the last half a century or so. The central hallway also features a hall-of-fame gallery of all the judges who have served at the Constitutional Court and the unbelievably long display aisle down the left side of the central hallway features original documents, statutes, briefs and judgements which the Constitutional Court has passed in the last decade and a half.

The rest of Constitutional Hill consists of the Johannesburg Central Jail used during the Apartheid era. Walking through the Central Jail, my feeling of amazement at the kind of suffering African and Asian prisoners had to suffer gradually turned to disgust and, as I unlocked every passing door to reveal room after room with no ventilation, light or sanitation, eventually to suffocation. As I walked deeper and deeper into these long, dark abysses, I was overcome by the intractable feeling of utter loneliness. The lone windows in the hostage spaces in Cell Block Four (whose inmates included Nelson Mandela and Mahatma Gandhi) are located in the southern corner, about eight feet above ground level and are no wider than a wooden two-by-four. Yet the inside, outside and perimeter of each window frame in each cubicle in Cell Block Four is dotted with fingernail marks of the countless thousands who dreamt of escaping, as improbable as the thought was. Or perhaps struggling to hang by the window frames just to see what the world outside looked like.

Discrimination pervades every imaginable aspect of the Central Jail – jail cells, food, showers, work, art, interaction, movement, social cohesion, scheduling of activities, festivals, violence and torture were all marked by differential treatment for native African prisoners and others. The current Central Jail tour dedicates one stop each to every one of these types of discrimination and far from forcing the fact of discrimination down one’s throat, I found these divisive and often devilish practices of the Apartheid regime to be an absolute revelation. The recorded tapes carrying the voices of prisoners who survived to see a new South Africa recounting their experiences at Johannesburg Central add a surreal, echoing presence to every jail courtyard and solitary confinement cell. The words of the prisoners rebound off the walls and are literally everywhere but I was struck by how unnecessary it was for them to recount anything at all. The singular design behind the prison practices was sickeningly obvious already – to extract every bit of hope and belief from the prisoners that there was any point in living. Even those prisoners who weren’t tortured were given compelling reasons to believe in their hearts that their lives had no purpose, that they would never see their families again, that they would be locked in dark rooms with nothing for company except their own thoughts and would be left as such until such time as their thoughts started corroding their own beings and turned cancerous. Indeed, even though the quality of the prison infrastructure was extremely good, the rates of suicide within the four walls of Johannesburg Central were among the highest of any prison in the world at the peak of Apartheid oppression.

It is this imposition of a life without meaning that has had a visible impact on South African rights jurisprudence. Their forms of torture may not have been as infamous, their targets of imprisonment may not have been as politically motivated and their colonial governments may not have been as oppressive but their denial of rights and liberty was demoralizing and soul-shattering in an absolute sense, compared with any colonial regime anywhere in the world. And this realization reflects itself in the understanding the South African Constitutional Court has displayed of the right to life and basic liberties. Stellar judgements in State v. Makwanyane (1995, abolition of death penalty), Hoffman v. South African Airways (2000, HIV/AIDS as an invalid ground of discrimination for employment), Government of the Republic of South Africa v. Grootboom (2000, shelter facilities for slum dwellers– I’ve been fascinated by the subject-matter of the case ever since reading an excellent appraisal of this judgement for Law, Poverty & Development class in third year) and Minister of Health v. Treatment Action Campaign (2002, access to life-saving drugs) reflect a point of view that may be pioneering as far as rights jurisprudence around the world is concerned but, within the South African legal fraternity, is seen a basic minimum duty that every judge at the Constitutional Court swears to uphold when he or she takes the high chair every morning. Analytically, South African rights jurisprudence has been praised by persons much more knowledgeable and articulate than myself for its zero tolerance towards discrimination in any form and the hard line it has taken on ensuring that social and economic rights are strongly allied to civil and political rights however heavy the social and financial burden of guaranteeing such an amalgam to every wronged citizen maybe. Nevertheless, I feel that several nations that look upon South Africa as the beacon for the realization of social, economic and other community rights in the third world, don’t fully appreciate how central a motivation to precisely such a realization historical experiences such as those expressed by Constitutional Hill really are. The highest of highs often spring from the lowest of lows but even countries like India which have experienced lows which easily rival, if not surpass, the South African experience, cannot, hand on heart, claim that the ideal of the independent citizen has been so central to their conception of a free nation. The difference, sadly, lies in the fact that our freedom movement, which is so often seen as an example of the triumphant victory of means over ends, never committed itself to the realization of such a collective ideal – something so widely cherished, nurtured and, indeed, developed over decades of struggle – and tempered by the humble understanding that independence was not a destination but an ever-evolving challenge.

I am more convinced now than ever before that it is only in viewing freedom for all citizens as precisely such a challenge that this nonsense about first- and second-generation rights and their prioritization can be brought to an end. In terms of social and economic rights, the South African story hasn’t, as most people believe, been a success because of some divine conception of rights but more a result of the zeal (or desperation, whichever way you look at it) to ensure that the basis for rights and entitlements is dictator-proof. Predictably, this has proved to be easy to grant but hard to guarantee. Frances, our cab driver during our tour to Constitutional Hill, is one of several million people in South Africa who applied from government accommodation in 1995 but still earns a living for his wife and four kids under the constant threat of being evicted by his white landlord and anyone who has seen urban Soweto first-hand can attest to the fact that the lives of nearly a quarter of South Africa’s 40-50 million population is a daily battle against poverty, disease, drug addiction and prostitution. Yet, the Constitutional Court continues to fight the good fight, even if it is one litigant at a time. It’s one of those rare instances when “nobody said it was easy, no one ever said it would be so hard” actually rings true.

And so, South Africa continues to straddle the line between global leader as a welfare government and independent nation still haunted by a traumatic past riddled with discrimination. The delusional schemes of long-dead South African freedom fighters – sampled by everything from tanks made out of blankets to patriotic poetry scribbled on the walls of the jail courtyards at Johannesburg Central– live side-by-side with the judicial heroes over at the Constitutional Court, no more than a few metres away. It’s difficult to imagine the Indian Supreme Court being located right next to Kala Pani but, adjusting for magnitude and location, that is precisely the contradiction that South Africa stands for today.