The Best Constitution?

A noticeable number of South Africans have boasted about their incredible constitution. According to many South Africans, it is the “best constitution in the world,” and for a while I agreed with them. The framework for the Republic of South Africa is exceptionally progressive and entitles all South Africans with the right to “dignity” as well as basic provisioning such as housing and employment. While I was very enamored with the forward thinking legislation during my first month in South Africa, I have recently been pondering if it’s really beneficial to have such a wonderful, progressive constitution if the government cannot deliver and actually ensure the standard of living promised to all South Africans.

As an intern for the Women’s Legal Centre, I had the opportunity to observe a rape trial in the Magistrate’s court. The accused had raped a 14 year old girl. South Africa has a minimum punishment statute of life imprisonment for the rape of a minor. As the Judge delivered his sentence, I was confident I was about to witness justice prevail. The Judge eloquently stated how rape, especially rape of a minor, violates the fundamental human rights, such as dignity and bodily integrity, protected by the South African constitution. Yet he only sentenced the accused to a 15 year prison sentence.

The judge tried to justify his disobedience from the minimum life imprisonment mandate by citing “mitigating factors” about the accused which I did not view to be credible. He claimed that because the accused was only thirty-seven years old, he could be rehabilitated and an asset to society in the future. He also cited how this charge was the accused’s first offence, which did not provide me with any comfort: the rate of rapes actually reported to the authorities is disturbingly low, so just because he had never been accused before does not mean that this was the first time he’d raped a minor. He also referenced other cases in which judges had granted the accused less than the “mandatory” life sentence for raping a minor to support his own decision. My boss later informed me how judges are continually setting a precedent to give out shorter sentences, therefore making it easier to ignore the minimum life imprisonment mandate.

Through interning at the WLC I also had the opportunity to sit in on the Department of Social Development portfolio report to Parliament. One of the Parliament members made a statement that really stuck with me: “all South Africans are entitled to a good retirement, whether they had a good job or not a good job or no job at all.” At first this statement seemed fair; we’re all human, and so we should all be ensured the same comfort and stability when we reach old age. However, once this statement sunk in it left me with an uneasy and confused feeling. Does someone who didn’t take initiative to seek employment and didn’t work a day in his life really deserve the same quality of retirement as someone who labored through terrible conditions, arduously long hours and supported a family? Deepening my feeling of unease, the chairwoman discussed only a few minutes later how government grants are often abused and how the government is currently seen as a “cash cow.” Where does one draw the line between a state which is a proponent of human rights and equality and a welfare state whose citizens feel entitled?


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