What does it mean to say one has a right to something? Does this right grant one access to property, or give permission to protest? What are human rights? What exactly do these rights “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, broader public goals or values.
A classic example of this is the way in which the right to ownership of land was understood under apartheid property law.
Ownership was an 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 then had to grant the eviction order.
An example of the constitutional right to a peaceful protest was on display in the way in which parliament members of a certain party complained about their removal from the house when they tried shutting down Pres. Cyril Ramaphosa from delivering the State of the Nation Address (Sona).
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 – irrespective 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.
Fortunately, our constitution embodies a different vision for understanding human rights.
It makes it clear what exactly our human rights entitle us to do, have, or experience. It is never abstractly fixed, immutable, or absolute, but must always be determined anew within context.
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.
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Prof. Danie Brand
is the director
of the Free State
Centre for Human Rights at the University of the Free State (UFS).
