Realigning human rights with the land question in South Africa

Abstract

This study commences from the premises that the1994 political settlement in South Africa as reflected by the 1996 Constitution and government policies offer no solution to the land question in South Africa. By the land question, I mean the unresolved question of historical injustice relating to land dispossession through various unjust actions that manifested in both colonial and apartheid times.The study asserts that the ideological and philosophical thrust of the Constitution is completely misaligned to the lived experiences and indigenous philosophies by Africans such as Ubuntu in favour of Western philosophies represented by neo-liberalism. This misalignment adversely affects effective resolution of the land question because it is neither bifocal nor restorative and consequently protects the status quo. As regards policies of the current government and the ruling party the study argues that the much celebrated political dispensation of 1996 witnessed a change of a government and not necessarily that of a state. As I will show failure of state succession means that the colonial state form, and consequently deprivation of Africans of title to their lands, remain. The study argues that the deliberate disregard of African philosophies in the negotiation process and consequently in the form and structure of the Constitution has created a false perception that the land question was resolved, and that what was left of it would be covered by the provisions of the Constitution. The Constitution, which has a complete disregard of the violent past as evident in land theft through conquest, pretends that South African land questions started with apartheid. The study traces the rise of South Africa’s neo-liberalism and her Constitution to the fall of feudalism in Europe, the wars of conquests and subjugation, the rise and fall of apartheid and the disregard of African philosophies and practices by the ANC before and after its rise to power. The study concludes that neither the current Constitution, nor current half-hearted government policies on land will provide a solution to the land question. The study consider the Constitution an instrument for legalizing land theft and calls for a completely new Constitutional dispensation as opposed to an incremental approach. The study concludes by proposing six steps that should be taken to developing a new Constitution. Central to those six steps is the principle of participation by the victims of conquest and subjugation.

Participation will mean the latitude granted to victims to make inputs into the contents of the Constitution before adoption by parliament and to confirm their support for a new document through a referendum shortly before it is officially signed off by the head of state. This study will therefore consider, the hitherto unappreciated views on human rights, by victims of colonialism, which views are in many respects contrary to those reflected in the South African Constitution. Consequently, one of the central arguments of this study is, therefore, that the realignment of human rights with the land question necessarily implies the reframing of the concept of human rights itself.