About World Day of Social Justice
Today South Africa joins the world to commemorate World Day of Social Justice (Social Justice Day). The United Nations (UN) designated 20 February as World Day of Social Justice through its General Assembly resolution more than a decade ago, on 17 November 2007. Since 2009, the UN and its agencies, such as the Department of Economic and Social Affairs (DESA), have been issuing messages commemorating World Day of Social Justice. For example, on World Day of Social Justice 2019, UN Secretary-General Antonio Guterres tweeted:
"Social justice is one of the foundations of peace. Its pursuit is at the core of the United Nation's mission to promote development and human dignity for all."
During the inaugural social justice commemorative event, former Human Rights Commissioner and member of the Elders, Mary Robinson, highlighted the need for countries to embrace the commemoration of World Day of Social Justice. Her statement included the following:
"Indeed, there are many links between human rights and social justice. Both highlight the importance of equality, democracy, participation, transparency, accountability, and inclusion. And both place the concept of 'justice' front and centre in efforts to forge a more stable and equitable world. We might ask: What will yet another global day of awareness really contribute to today's enormous challenges? How should we best use this moment to catalyse concrete actions that will have tangible impacts on how things are done every other day of the year? Of course, a central aim of this day for Social Justice is to help re‐focus the attention of governments and people everywhere on important commitments which remain unfulfilled. Looking back now, we know the commitments agreed in Copenhagen in 1995 have been side-tracked in the years since. We should thus use this day in part to highlight the alternatives to the neo‐liberal economic approach that has been dominant in many of our institutions of global governance."
Robinson's enthusiastic tone and sense of urgency regarding government taking action to make a difference for social justice was echoed by the International Labour Organization (ILO) whose very existence, as envisaged in the Treaty of Versailles of 1919 that established it, is to facilitate the adoption and guard railing of measures to advance social justice at work and in the broader economy the pursuit of social justice and has done so for over a century. Showing a nod to the inaugural theme, "The Crisis: Threat or Opportunity for Social Justice" it declared:
"Participating governments have made a commitment to the creation of a framework for action to promote social justice at national, regional, and international levels. They recognise that economic growth should promote equity and social justice and that 'a society for all' must be based on social justice and respect for all human rights and fundamental freedoms."
Interestingly, the renewed urgency regarding the advancement of social justice happened in the aftermath of the economic meltdown that flowed from integrity lapses in the American banking sector and devastated economies across the world, hitting working people more disparately than any social group in society. The impact of globalisation, which partly accounted for the devastation caused by the 2008 economic meltdown, has also been a factor, while the Covid-19 black swan, mostly felt since 2020, has spurred a new wave of urgency regarding the advancement of social justice. For example, in 2020, DESA, a UN agency that plays a central role in overseeing the implementation of the Copenhagen Declaration on Social Development of 1995, whose contents focus on advancing social justice, stated:
"Member states were invited to devote this special day to the promotion of concrete national activities in accordance with the objectives and goals of the World Summit for Social Development and the twenty-fourth session of the General Assembly, entitled "World Summit for Social Development and beyond: achieving social development for all in a globalizing world"….The observance of the day should contribute to the further consolidation of the efforts of the international community in poverty eradication, promotion of full employment and decent work, gender equity and access to social well-being and justice for all."
What is Social Justice
The Law Trust Chair in Social Justice Studies at Stellenbosch University regards social justice as a state where equal enjoyment of all rights and freedoms is reflected in the just, equitable and fair distribution of all opportunities, resources, benefits, privileges and burdens in a society or societies. Ultimately, social justice is a dimension of ubuntu that is part of embracing the humanity of every person regardless of human diversity and positioning in the social gradient. This definition is crafted by taking into account the etymology of the concept of social justice from its philosophical roots in the mid-nineteenth century, its conceptual plasticity and evolution, which can be gleaned from the Copenhagen Declaration, and the jurisprudence of apex courts in countries with constitutions with an express commitment to advance and uphold social justice, such as South Africa, Nepal, India and Kenya.
Italian Jesuit philosopher, Luigi Taparelli, coined the concept of social justice in 1843 out of concern over unconscionable social and economic disparities that flew from inequitable sharing of the fruits of social and economic collaboration entailed in the first industrial revolution and the social conflict that was triggered by injustice. As understood at this conceptual stage, social justice was about the fair distribution of the benefits and burdens of social coexistence and economic cooperation. At the point of genesis, social justice primarily referred to economic justice. Taparelli further saw a link between social conflict and the odious asymmetries in the distribution of the fruits of the first industrial revolution and commercial agriculture and proffered social justice as a key to peace.
Social justice as economic justice and the link between peace and social justice are apparent in the Treaty of Versailles, the peace agreement signed in Versailles, France in 1919 to officially end World War I. The Treaty of Versailles, which established the UN's precursor, the League of Nations, embraced social justice as a guarantor of sustainable peace and incorporated a provision for establishing the ILO to work towards social justice. However, the contents of the peace treaty and its impact on subsequent poverty in Germany have been criticised by some as too draconian, overly skewed in favour of the Allied Forces and identified as a major contributor to the rise of fascism, Hitler, and a trigger of World War II.
In its conceptual evolution, social justice has shown enormous plasticity. Over the years, it transcended the focus on remedying economic disparities and achieving economic justice. A key contributor to the conceptual evolution of social justice is American modern philosopher and Harvard professor, John Rawls, who dedicated his 1971 treatise titled, A Theory of Justice, to social justice. Rawls simplifies social justice to fairness to all. He posits that social justice as fairness to all is what a hypothetical group of people charged with designing a formula for distributing the fruits and burdens of social coexistence and cooperation would choose under a veil of ignorance regarding their station in life. Rawls' concept of justice as a distributive concept anchored in fairness to all, gives primacy to equal enjoyment of all rights and freedoms by all, subject to the difference principle that recognises the value of different contributions while compensating for nature's arbitrary distribution of fortunes and misfortunes such as disability and generational wealth at birth.
The South African constitutional conception of social justice transcends Rawls' recognising and remedying nature's arbitrariness and incorporates restitutive justice for state-manufactured inequality through past legalised injustices. This has been the case with historical dispossession, exclusion from economic opportunities of the majority and preferential treatment for some in the pre-constitution centuries.
By the time the UN was formed, social justice referred to fairness in the distribution of all burdens and fruits of social cooperation. For example, though not specifically mentioned, social justice underpins the UN treaties that followed, particularly the Charter of the United Nations 1945 and the Universal Declaration on Human Rights, as may be seen in the undertones of fairness to all and the link between justice and peace. The conception of social justice beyond economic justice can also be gleaned from the specific mention of social justice as part of racial justice, beyond economic fairness, in the International Convention on the Elimination of Forms of Racial Discrimination (ICERD) of 1965. The ICERD saw racial equity as a social justice issue and the elimination of race and colour-based discrimination and related harm as anathema to peace. The Copenhagen Declaration of Social Development of 1995, which brought social justice back squarely into the United Nations agenda, drew the link between social justice and equal enjoyment of human rights by all and underscored the centrality of social justice to sustainable human progress and peace.
The Constitutional Commitment on Social Justice
When South Africa adopted its pioneering Constitution in 1996, social justice was intentionally incorporated as one of the three core aspirations of the society it sought to provide a blueprint for the establishment of. This included undoing the legacy of the racially unjust systems of colonialism and apartheid that had spurred the conflict, which brought the country to the brink. This made South Africa's Constitution one of the few modern constitutions that unambiguously declare social justice as one of its core goals and of its transformative agenda, together with advancing human rights and democratic values.
The preamble to the Constitution states the people adopt it to lay the foundations for establishing a society that is based on democratic values, social justice and fundamental human rights. The Constitutional Court, which is the ultimate guardian of the Constitution, has determined that the preamble is essential in interpreting the Constitution and that ours is a blueprint to transform social relations towards egalitarianism and public governance towards social democracy.
The South African constitutional conception of equality, primarily as reflected in constitutional court jurisprudence, equates social justice with the substantive notion of equality combined with the value of ubuntu. However, the Constitutional Court's interpretation of the constitutional notion of equality transcends the formal notion or de facto equality, which sees positive measures as a permissible deviation from equality. It sees restitutive measures as intrinsic to equality.
This can be gleaned from cases such as S v Makwanyane, which abolished the death penalty, PE Municipality v Various Occupiers, which balanced land ownership rights with rights of landless people, Daniels v Scribante, which sought to balance the rights of tenants with those of land owners, Minister of Finance v Van Heerden, which approved a special pension for those that were prevented by apartheid law from becoming parliamentarians, Zondi which struck at the livestock dispossessing Pound laws and Brink v Kirschoff and Dawood whose transformative interpretation of laws sought to reduce gendered power relations, nationality disparities and advance gay human rights.
If the constitutional commitment to social justice were adhered to, there would be a gradual reduction of the gap in the unequal enjoyment of all rights and freedoms that existed 30 years ago. There would be visible progress regarding just, equitable and fair distribution of all opportunities, resources, benefits, privileges, and burdens in all dimensions of South African society.
Is the Constitution a Potemkin Charade?
The stubborn persistence of the racialised, gendered and other disparities manufactured by colonial and apartheid laws, policies and social schemes that keep black people of different shades (Africans, coloureds and Asians/Indians) unequal along the contours of such unjust past distributive schemes is evident to all. Through the principle of exponentiality, some of these disparities, such as poverty, which was estimated at 55.5% before Covid-19 and the Gini-coefficient, which hovers near 0.7 (the ideal being zero), have widened beyond pre-constitutional levels.
Racialised and gendered social prestige and related discrimination and polarisation have not abated significantly. The racially divisive Bell Pottinger campaign, which sought to derail the state capture investigation, and subsequent similar campaigns, have had a field day as they feed on grievances regarding poverty, opportunity barriers for many and disrespect experienced by many of the historically oppressed. Xenophobia and related intolerances have grown, as has gender-based violence, including femicide.
A growing intellectual cohort disavows the Constitution as anathema to the aspirations of those racially dispossessed of property, dignity and opportunities and oppressed under colonialism and apartheid. Some reject it as a neo-liberal blueprint that ossifies the ill-gotten gains of the beneficiaries of racially unjust colonial and apartheid laws, policies and related measures.
Others ask if the Constitution is more than the proverbial Potemkin village, which is simply a charade that looks glorious externally while being an empty shell, as Potemkin is said to have done to impress Catherine the Great with non-existent Potemkin villages. Some, like Palesa Musa, reject democracy. Musa, who was arrested on June 16, 1976, as a 12-year-old child for protesting the apartheid regime's Bantu education, ended with arrested human development and the poverty that goes with it. On first contact at the Thuma Foundation Social Justice event in 2017, Musa argued that poverty has the same barrier creation and opportunity-limiting effect that pass laws under apartheid had. Musa has been adopted as the face of the Musa Plan For Social Justice, a Marshal Plan-like initiative initiated by the Social Justice Chair at Stellenbosch University to mobilise academic and broader civil society input to catalyse progress on social justice. This is through leveraging the UN Sustainable Development Goals (SDGs) and the National Development Plan (NDP) to significantly reduce structural inequality and end poverty by 2030.
As one of a new breed of constitutions that specifically entrench social justice as a pillar and goal, one would expect South Africa's Constitution to be at the forefront of heeding the UN call on social justice day. This has not been so. This does not suggest the government does not care about the Copenhagen Declaration on Social Development and the issues underpinning it. It simply means government misses the opportunity to galvanise all around social justice as a common good and get all to play their part in advancing it, including through voluntary restitutive actions, where appropriate. Its premise is that the achievement of social justice through the advancement of equality and fighting poverty could benefit immensely if World Day of Social Justice commemoration got the same attention as Women's Day, World AIDS Day, World Disability Day or Word Antiracism Day.
Why should you and I care about Social Justice?
Just as business and allied leaders saw justice as an antidote to conflict and war, injustice's threat to peace and social cohesion remains. The harsher the injustice, the more resentment there is. In my address to the Salzburg Seminar in 2017 titled Beyond Just Us: Crossing the Rubicon of Hope through Justice-centred Leadership and to the United Nations University in 2019 titled Social Justice Transcending Inequalities, I pointed out that not only is our failure to make meaningful progress on equality, including poverty, a social justice matter, we place ourselves at the risk of domestic and international conflicts as people gravitate towards fascist demagogues and other extremists. I also pointed out that one of my discoveries as Public Protector was that people don't care much about anti-corruption and anti-state capture efforts if it doesn't also positively impact the freedoms that matter to them. Such freedoms include freedom from want and from everyday injustices and from economic barriers that mug their social mobility efforts regardless of their hard work due to historical opportunity asymmetries and gatekeeping. I also indicated that persisting structural inequality is not only a threat to peace but also a major pillar of structural economic inefficiency, locking away from productivity and innovation more than half the population that could make South Africa great. Unlocking human potential and improving every citizen's life is not only about honouring the constitutional commitment and international human rights obligations but also about unlocking value in the South African, continental and global economies.
A Rubicon Opportunity
Just as the UN saw the crisis in 2008 as an opportunity to turn things around regarding society as a public good and global imperative, World Day of Social Justice 2023 takes place in the aftermath of the Covid-19 pandemic and during the Ukraine war, while the world is still reeling from the socio-economic displacements of aspects of digitalisation and globalisation. This may just be the inflection point that can bring about a meaningful shift towards social justice and sustainable progress. To commemorate Social Justice Day this year, Stellenbosch University and its Centre for Social Justice will host the 4th Annual Social Justice Lecture on Tuesday, 21 February. The lecture will be presented by retired Constitutional Court justice Albie Sachs, an architect of the South African Constitution and author of various constitutional court judgements that have moved the needle on social justice through transformative constitutionalism. Sachs, a struggle stalwart, who joined the struggle at the age of 17 and lost his arm and sight in one eye due to a bomb from apartheid agents, will deliver the Social Justice Lecture entitled: _ Social Justice and the Constitution: Is This the Country We Were Fighting For _ ? Sachs understood then and still does now that no peace can endure where freedom and prosperity for one group are based on oppression and extraction from another or other groups. In the past, this was achieved through unjust weaponising of the law and social power for the asymmetrical distribution of the benefits and burdens of social coexistence and cooperation.
The question is, what has been and what should be the role of the law and society regarding social justice going forward? Can we and will we cross the Rubicon of hope presented by this crisis moment regarding social justice? If not, are we ready for the strife that lies ahead?
Prof Thuli N Madonsela is the Centre for Social Justice Law Trust Chair Professor of Social Justice Studies and Co-Founder of the Thuma Foundation.