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HUMAN RIGHTS MONTH: I have the right to …

20 March 2023 | Story Prof Danie Brand | Photo Supplied

Opinion article by Prof Danie Brand, Director of the Free State Centre for Human Rights at the University of the Free State.

Opinion article by Prof Danie Brand, Director of the Free State Centre for Human Rights at the University of the Free State

What does it mean to say one has a right to something, such as access to housing or to protest or to property? What are human rights? What do they ‘do’?

One often hears of human rights being asserted as if they give one an absolute claim to something specific and discrete, which can be enforced against anything and everyone else, irrespective of the impact on the interests (and rights) of others, as well as broader public goals or values.

Perhaps the clearest example of this was the way in which the right to ownership of land was understood under apartheid property law. Ownership then was an absolutely exclusive right: it entitled its holders to exclude everyone else without a countervailing right from their land, irrespective of circumstance or context. All a landowner had to prove before a court to obtain an eviction order if they sought to evict someone from their land, was that they had the right (owned the land) and that those they sought to evict had no countervailing right in law to be on the land. If the right was proved in this way, the remedy of exclusion through eviction followed automatically – the court had to grant the eviction order.

Constitutional right to peaceful protest

A more recent example of this view was on display in the way in which members of parliament complained about their removal from the house when they attempted to shut down the President’s State of the Nation Address through protest action. Many responded by saying their removal was unjustified because, by trying to stop the address from proceeding, they were exercising their constitutional right to peaceful protest. The assumption underlying this response is that the right to protest peacefully and unarmed entitles you to protest peacefully and unarmed in any way you see fit and regardless of the consequences for other people and for society at large.

With this view of rights, a right bestows on its holders a sphere of absolute inviolability – an abstract space within which they can do what the right entitles them to do (protest, hold property, speak, associate or whatever), subject to nothing and no-one else, with no limitations. Rights are seen as instruments through which to separate ourselves from other people and unilaterally impose our will and our interests on others. Rights operate as trumps, boundaries, conversation stoppers.

Understanding human rights

Fortunately, our constitution embodies a different vision or understanding of human rights. In various ways, our constitution makes it clear that what exactly our human rights entitle us to do, or have, or experience, is never abstractly fixed, immutable, or absolute, but must always be determined anew within context. Whenever we seek to exercise one of our human rights, its precise contours and limits must be determined in light of the circumstances prevailing at the time we seek to exercise it; the history of our country; the impact that our exercise thereof will have on the rights and interests of other people; and how our conduct in terms of the right aligns with the public interest and broader constitutional goals.

In this view of rights, our understanding of the right of ownership (which is of course not one of the human rights proclaimed in our constitution but is only indirectly protected in Section 25 of the Constitution) has been moulded into something entirely different from the apartheid conception. Landowners no longer have absolute, exclusive control over their land that simply arises from the fact that they have the right to ownership. If landowners today want to remove people occupying their land without any legal right to do so – in addition to and after proving their ownership – they must persuade a court that eviction would be just and equitable in light of all relevant circumstances (prevailing circumstances; interests of others, including the occupiers of their land; the public interest; constitutional goals) before they will succeed.

WATCH: The Power of Human Rights

Building democracy

Likewise, if we seek to exercise our right to protest – in order to know what we would be entitled to do in terms of that right – we must consider how our protest will affect the rights and interests of others and whether that impact can be justified, and how the manner and form of our protest squares with constitutional goals such as building democracy. Equally, of course, if others object to our protest because of its impact on their rights and interest, they will have to contextualise their attempt to exercise their right to education, or academic freedom, or freedom of movement in light of our interests, the prevailing circumstances, the public interest, and constitutional goals such as fostering democracy, freedom of association, and freedom of speech.

That is, instead of rights in our constitutional order being abstract spheres of inviolability that can be exercised against others to protect or enforce our interests without consideration of context, keeping us apart, they are mechanisms to enable us to live together, to find accommodation between our disparate, perhaps conflicting, but often overlapping interests and concerns.

What is it then that our human rights do for us or entitle us to? Whenever our human rights-related interests are at stake, or if we rub up our fellow human beings with whom we cohabit the wrong way when our interests seem to clash, they entitle us to be taken equal account of. They require others (most importantly those in authority, usually the state) to include us and have concern for our interest, equal to the concern for others, in the conversation about what should happen and what we may or may not do. In this sense, rights do not keep us apart or stop conversations. Instead, they are acutely democratic mechanisms, making it possible for us to live together. ‘Only that?’, you may respond – but this is no small thing.

News Archive

UFS institute set to contribute to transformation in South Africa

2011-01-23

The UFS launches it's new International Institute for Studies in Race, Reconciliation and Social Justice.
- Photo: Dries and Henco Myburgh

Today (Thursday, 27 January 2011), almost three years after the Reitz affair, the University of the Free State (UFS) is launching its International Institute for Studies in Race, Reconciliation and Social Justice. This international institute will be inaugurated by Archbishop Emeritus Desmond Tutu, Nobel Peace Prize Laureate and Chairperson of the former Truth and Reconciliation Commission, who received an honorary doctorate in Theology from the university earlier today.

According to Mr John Samuel, Interim Director of the institute and former Chief Executive Officer of the Nelson Mandela Foundation, the institute seeks to establish itself as a premier international site for research on race, reconciliation and social justice.

“It is encouraging to see the UFS bringing to the fore such an initiative, which combines a study in race, reconciliation and social justice, all of which are indispensible elements in the process of rebuilding our nation,” said the Deputy President of South Africa, Mr Kgalema Motlanthe, in his message of congratulations to the university.

“I am confident that on the strength of its stature, coupled with its eminent experience as an academic institution, the UFS will further assist our country advance towards a united, non-racial, non-sexism, just and prosperous future.

“I wish the institute well in its arduous but noble task of contributing to the building of a better human society,” he said.

Prof. Jonathan Jansen, Vice-Chancellor and Rector, stated during his official inauguration in 2009 that the university would be an example of a place where reconciliation, forgiveness and social justice would not only be studied, but where it would also be applied in practice. “Students and scholars from across the world will come to the UFS to study the theory and practice about the building of societies across the boundaries of race, as well as religion, gender, disabilities and national origin,” Prof. Jansen said.

The institute is a critical space where engaged scholarship, public discussion, community engagement and teaching are innovatively integrated towards exploring and finding solutions to the complex and challenging work of social transformation in South Africa.

The institute furthermore works towards the realisation of its mission through a multiplicity of approaches and methods, informed by the notion that deep and complex social challenges require courageous and challenging scholarship, supported by innovative organisational forms and institutional arrangements.

Working from the inside to the outside, the institute will firstly serve the needs of the university, its staff and students. Through its research, the institute will endeavour to understand the challenges facing the UFS better, as well as how to address these challenges. For this reason, the concept of the UFS as a “live laboratory” and the use of evidence-based practice remain important for the university.

The institute will also reach out and empower its stakeholder communities through research and ongoing involvement on issues of race, reconciliation and social justice. Furthermore the institution expects to contribute to the creation of national and international networks and dialogue platforms pertaining to race, reconciliation and social justice.

For the first five years, the themes of 1) Values, Faith and Social Justice; 2) Development and Social Cohesion; 3) Teaching and Learning for Social Justice; and 4) Provincial, National, Global Perspectives and Leadership will direct the institute’s work.

The UFS will make a substantial contribution to the pursuit of reconciliation, greater social cohesion and equity in South Africa. The university is thus prepared to continue to engage the difficult, practical and trying work of building a strong, quality institution as it promotes racial healing and addresses the structural imbalances of the past. It is at this nexus that the institute commits to enabling change at the university as well contributing to transformation in South Africa.

Deputy President Kgalema Motlanthe's message of support to the University of the Free State (PDF format)

Media Release
27 January 2011
Issued by: Lacea Loader
Director: Strategic Communication (actg)
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: news@ufs.ac.za

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