Abstract
Does the new South Africa represent a promising future for African legal discourse, or does it simply perpetuate liberal ideals and neoliberal economic policies inappropriate to the needs of Africans? Focusing attention on the practice of rights claiming in the context of the fight for HIV treatment access, I argue that neither the celebratory nor the critical perspective adequately captures the complexity of the legal discourse of and lessons to be learned from South Africa. Instead, both perspectives reduce legal discourse to a static liberal ideology and thereby miss the important role played by African Ubuntu, the ideal of human interdependency. The role of Ubuntu becomes visible when we adopt a performative perspective to analyze the treatment access campaign’s activities. This perspective, I argue, sheds light on the multiple rights discourses cited and new subjectivities created in the expansive practice that is rights claiming.
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- 1.
The South African Constitution entitles citizens to traditional political and civil rights as well as to justiciable social, economic, and cultural rights; it also stipulates that court decisions must be consistent with international law.
- 2.
These critics echo a general concern of many on the political left. This ‘left critique’ of rights suggests that rights discourse perpetuates certain liberal ideas about individualism and the role of the state and advances neoliberal public policies that ultimately serve the interests of global capital rather than the interests the people. See, for example Brown (2005) and Kennedy (2012).
- 3.
For example, in the Grootboom (2001) case, the plaintiff won a constitutionally recognized right to housing and yet died without a home of her own. Government of the Republic of South Africa and others v. Grootboom and others, 2001 (1) SA 46 (CC).
- 4.
According to Makau Mutua, for example, the black majority in the new South Africa will not be served by rights because ‘The deployment of the rights idiom as the principle medium for transformation will in all likelihood fail to reverse the deep-seated legacies of apartheid’ (1997, p. 114). Mutua roots the inadequacies of rights-based political practices in their deep intertwinement with capitalism: ‘failure of imagination and acquiescence to a free market vision of political democracy has robbed the human rights corpus and the movement of the impetus to think beyond markets and systems of exploitation that produce ugly social structures’ (2008, p. 31).
- 5.
I do not mean to suggest that all those who champion a rights-based effort to make change in South Africa do so without qualification. Indeed, many of those at the center of these efforts are acutely aware of the limitations of rights language and the political and economic contexts in which it is deployed. Marius Pieterse, for example, who is a member of Section 27, the public interest law center that includes the former AIDS Law Project, tempers his praise for a rights-based approach to social change by acknowledging that ‘the transformative potential of rights is significantly thwarted by the fact that they are typically formulated, interpreted, and enforced by institutions that are embedded in the political, social, and economic status quo’ (2007, p. 797).
- 6.
I would argue that many in the treatment access movement were always quite cognizant of the ‘political’ dimensions of rights claiming and approached the discourse pragmatically rather than zealously (e.g., Forbath 2011; Heywood 2009). Of course, taking this pragmatic approach is not necessarily easy given the way rights have been theorized historically, the way international human rights documents are worded, and the cultural expectations that have come to seem commonsensical about rights. For example, the United Nations Office of the High Commissioner for Human Rights states that human rights are ‘universal and inalienable’, that they are ‘inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status’ (http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx). Thus it is not surprising that we think, act, and write about rights as if they are and should be clear trump cards because of their implicit legal or moral truth despite the fact that empirical evidence and philosophical argument suggests otherwise.
- 7.
I offer a more extensive discussion of a performative perspective on rights as a democratic practice of citizenship in Zivi 2012.
- 8.
- 9.
The Treatment Action Campaign has produced its own histories of their organization. These include TAC: An Overview and Fight for Our Lives: The History of the Treatment Action Campaign 1998–2010, both available online at http://www.tac.org.za/community/files/10yearbook/index.html
- 10.
As of 2012, South Africa has a National Strategic Plan on HIV, STIs, and TB.
- 11.
- 12.
Current estimates put mother-to-child transmission rates at 4 %. The National Strategic Plan (2012–2016) seeks to get this rate below 2 % by 2016.
- 13.
Biomedical studies of HIV-positive women’s experience suggest a less critical but nonetheless complementary description of the way rights have, or have not, influenced women’s lives in South Africa. For example, MacGregor and Mills (2011), who studied a small group of HIV-positive women between 2003 and 2008, found that the language of rights and community engagement, so central to the lives of these women in the early years of the treatment access campaign, gave way to the language of personal responsibility and privatized experiences, ultimately individualizing the issue and shifting responsibility away from the state. And see Eyakuze et al. (2008) for another study of the PMTCT programs that suggests such programs do not empower women as much as was expected or is necessary to advance women’s equality and autonomy. See Colvin et al. (2010) for a discussion of the production of responsible HIV-positive men.
- 14.
This assessment is based on several interviews done with current and past TAC members during May 2012. As one interviewee explained, it is more difficult to mobilize people to protest than it used to be and, ironically, the success of treatment programs might actually kill AIDS activism. Indeed, it is, this person suggested, much easier to mobilize people against a state for actively violating their rights than it is to mobilize the same people to fight for adequately-staffed health clinics. It is also more difficult to mobilize a generation who feel entitled to a set of rights for which they have not had to fight.
- 15.
I do not mean to deny the nuances of either the more celebratory or critical perspectives on the treatment access campaign. Both recognize aspects of the alternative perspective, and yet clearly place an emphasis on one particular reading of the struggle. Johnson for example, raises concerns about the neoliberal aspects of the struggle while also acknowledging that it ‘challenges liberal understandings of rights, promoting a more socialist or nationalist understanding of rights that focuses on equality of access and collective rights and is grounded in the discourse of the liberation struggle’ (2006a, p. 126). Still, her conclusion is that ‘the dramatic increase in the political franchise and the heightened awareness of one’s rights continues to be prejudiced by the priorities of neoliberalism and global markets, as well as internal power struggles and the consolidation of a new political order’ (2006a, p. 128).
- 16.
Mutua, for example, suggests a turn toward African customary law and traditions: ‘for rights to make sense in the African context, one has to go beyond the individual and address group identities in the political and economic framework of the state’ (2008, p. 34), while Albertyn and Meer (2009) suggest a greater focus on gender inequities is necessary.
- 17.
In reminding us that rights claiming is an activity embedded in but not fully determined by context, a performative perspective not only offers a more holistic approach to treatment access struggle, it may be more consistent with the perspectives taken by those spearheading the struggle itself. For example, there are important affinities between a performative perspective on rights claiming and TAC’s idea of a ‘politics-centered approach to ESR advocacy’. For comprehensive discussions of a ‘politics-centered approach’ to human rights and illustrations of the variety of activities entailed by and importance of context for the meaning of such a politics, see Forbath (2011) and Heywood (2009).
- 18.
In fact, their original target of criticism was not the government but the pharmaceutical industry and the exorbitant costs it charged for AIDS drugs.
- 19.
The first generation of PMTCT programs provide AIDS drugs to prevent transmission to the infant, but women are taken off the AIDS drugs once their children are declared HIV-negative, unless, of course, their own CD4 count is at a particular low. Interviews, May 2012.
- 20.
Interview, May 2012.
- 21.
According to Joan Church, ‘Some of the distinctive features that link the various indigenous systems are the communal character of the law and the importance of the group…. Two of the most significant features are that duties as well as rights are stressed and both are shared’ (2005, p. 99). And though customary law and ideals such as Ubuntu were never dominant, and were often used in the service of colonial and apartheid aims, its ongoing influence on South African jurisprudence reminds us that rights discourse in South Africa cannot be reduced to liberalism if liberalism is understood as a set of ideas developed solely by Europeans in the seventeenth, eighteenth, and nineteenth centuries.
- 22.
- 23.
Interviews with M. Besser, May 18, 2012 and Anonymous, May 2012.
- 24.
Mentor Mothers who are employed by m2m for a year or two earn a salary. After their mentoring tenure, some go on to work in other capacities for the organization while others become entrepreneurs.
- 25.
Interviews, May 2012.
- 26.
Interview, May 24, 2012.
- 27.
Interview with Besser, May 18, 2012. According to Besser, it is m2m’s morally compelling and fairly uncontroversial motto of ‘helping mothers saving babies’, combined with the fact that m2m addresses HIV/AIDS after sex has already occurred, that has allowed it to thrive and grow as an organization. M2m is not set up ‘against’ anything or anyone. Besser was simply looking for a more effective way to assist women in understanding and responding to the realities of having HIV while being pregnant and he figured that women who have similar backgrounds and experiences would be most effective in communicating messages about treatment as well as in providing emotional support. Interview, May 18, 2012.
- 28.
Of course, ‘liberalism’ itself is not a seamless or static set of ideas and institutions, nor are neoliberal economic development policies. To be sure, there are some ideas that take precedence and dominate policy and law making, but even these historically and culturally located ways of thinking and acting have never been without contradiction, or are they completely immune to mis-citation or subversive repetition.
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Zivi, K. (2014). The Practice and the Promise of Making Rights Claims: Lessons from the South African Treatment Access Campaign. In: Onazi, O. (eds) African Legal Theory and Contemporary Problems. Ius Gentium: Comparative Perspectives on Law and Justice, vol 29. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7537-4_9
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