Are South Africans Free? – A Review

Are South Africans Free? by Lawrence Hamilton

Nelson Mandela, in his Long Walk To Freedom, wrote that South Africans have ‘merely achieved the freedom to be free’. As Lawrence Hamilton, Professor of Politics at the University of Johannesburg, argues, in his book Are South Africans Free?, the political freedom attained in 1994 has in fact failed to ‘free’ the majority of South Africans. Instead Hamilton opines that the ‘freedom as power’, or the ability for an individual to fulfill their needs, is still only a whispered rumour for the vast majority of South Africa’s population.

This inefficacy of the political freedom attained in 1994 to create a transformative freedom is, according to Hamilton, the result of four factors: the failure of South Africa’s proportional representation system to represent the people in parliament, the ‘elite compromise’ that was made between the ANC and NP during the negotiation process, the human rights discourse contained within the South African Constitution and the ANC’s adoption of conservative economic principles.

Although I have are some theoretical concerns with Hamilton’s definition of ‘freedom as power’ he is very good at defining the historical problems that have beset us postapartheid. The problems that have created a country that has left between 30% and 40% of its population languishing in positions of unemployment, that has an education system ranked 140th out of 144 in the world and has a Gini coefficient at 0.63. making it ‘one of the most unequal, if not the most unequal, place on earth.’  His description of how the ANC has led South Africa into what statistically seems to be a worse off position than the country they inherited is rigorous and largely without fault.

Hamilton in recounting these events clarifies one thing that is quite often never acknowledged. That is that the ANC hamstrung itself by taking on the Apartheid Government debt for supposedly all the ‘right reasons’. Firstly, they did this, as he points out, because they wanted to show that their new government could be trusted by foreign investors. Secondly it knew that it had to please much of its own creditor-class who were and still are dogmatically capitalist.  And thirdly because many of the ANC leaders had witnessed firsthand the economic cardiac arrest of the ex-communist countries, they wished to move cautiously in order to avoid handing over South Africa’s sovereign independence over to the IMF.

This was a policy that ran into some significant problems and came into direct conflict with the ANC’s own supposed ethos. One was that with little capital the government was unable to role out the major infrastructural and restitutional reforms that were after all the reason why they were elected into power.  Furthermore the fact the government’s creditors would ultimately lack any real political representation in parliament meant it made investors nervous.  And there was the ‘wait and see approach’ from overseas investors concerned about what might happen to South Africa’s economy.

There were at the time other workable and perhaps more appealing models – Asian and post-war European ones in particular – to choose from but the ANC, persuaded and wooed by the likes of Harry Oppenheimer, decided on a western conservative approach that would please its creditor-class.  As Hamilton goes on, no matter how sound this policy might have been in creating stability, it is unlike almost all established representative democracies in that the economic policy of the ANC government would serve a socio-economic group that did not vote it into power and that it did not represent.  This would mean two things: one that the ANC would not be serving the mandate they were elected into power on, two that the countries creditors would largely remain unrepresented in parliament.  This too would cause an instability that makes ‘South Africa a risky place in which to invest.’

But there were other reasons for the lack of investor confidence that were not necessarily economic.  Certainly President Mbeki’s catastrophic public denial of the links between HIV and AIDS as well as the repeated news of government corruption did not help quell any investor’s qualms.  So with this conservative capitalist approach to economics, run in conjunction with an outlandish and seemingly chronically corrupt government, the chances of meaningful development were severely dented.  As Hamilton says: ‘despite making all the right moves in terms of economic orthodoxy of the age the South African state still lacks credibility’.  There is, he rightly goes on to argue, a fundamental fault in popular economic and political thinking, in that just because a country turns to democracy and capitalism does not imply that it will solve its problems.  As Hamilton states: ‘the supposed causal relationship between representational democracy, public debt and state credibility are fundamentally flawed, at least in the case of South Africa.’

And so this counter intuitive political balancing act, although leading to a non-violent solution to South Africa’s problems, would in fact be very far from creating the revolution that the ANC often claims to have enacted, nor in fact the capitalist safe haven for investment.  Rather it was, as he puts it, simply an ‘elite compromise’ between the ANC and the National Party.  What is more the compromise would largely rely on the discourse of human rights entrench in the Constitution that was created largely to protect minorities and in particular white property owners. This also suffered from a chronic problem in that it would also mean that the Constitutional Court, rather than the elected legislature, would be the final arbitrator of ‘the people’s will’.

What has certainly exacerbated these issues, as many political parties and commentators including Hamilton have declared, is the ‘closed party lists’ of South Africa’s proportional representational system.  This he argues has led to a total lack of accountability in parliament.  Without a system of liability, members of parliament have simply been given a mandate to do what they will for five years. This has left little or no room for ‘the people’ to politically participate outside of election time, a frustration which has no doubt manifested itself in the ubiquitous service delivery protests that the country has been prone to over the last decade. However, more importantly, all of the above would lead South Africa into its current political status quo, that is to say an impotent, lazy, corrupt and ambivalent government, which fails to address the needs of its population.  But as Hamilton contends that what lies at the root of this failure is that South Africa, at the end of apartheid, ‘produced a constitution based on human rights and forms of economic policy and political representation that have hamstrung any attempts to attain freedom as power for all South Africans’ (italics mine).

Hamilton is no doubt correct on all of these points, however, it is his argument for ‘freedom as power’ that is at times both confusing and at least partly theoretically unsound.  Perhaps one of the root causes of the inconsistencies in Hamilton’s argument is, like many South Africans, Hamilton, although ostensibly arguing along liberal lines, seems to wish to distance himself from the label of ‘liberal’.  In doing so he brings into his exegesis some easy catch phrases from Karl Marx, Frantz Fanon and Michel Foucault.

His quotation of Fanon’s idea of freedom, that is to say that it manifests itself as the access to ‘land’, ‘bread’ and other requirements necessary for ‘human dignity’, seems distinctly out of place.  Fanon’s ideas are after all vastly divergent from Hamilton’s. The suggestion that his own thinking is lies concurrent with Fanon’s is deeply misleading.  Hamilton’s ‘freedom as power’ is one based on the idea of political representation and thankfully contains none of the synthesizing or cathartic violence Fanon’s did.  In fact Hamilton goes some way to explaining the undesirability of revolutionary violence.  Rather the addition of Fanon’s thought into the book seems to be that South African knee-jerk insistence of quoting Fanon in order to show that one is somehow anti-colonial and anti-‘liberal’.

Far closer to the idea that Hamilton wishes to express is contained in the work of the Nobel-prize winning economist Amartya Sen. Certainly Sen’s work is both more compatible with Hamilton’s main interests than any idea contained in The Wretched of the Earth.  Sen has after all argued that government policy should be directed at a just distribution of social goods so that people are given the ‘capabilities’ to achieve certain ‘functionings’. That is to say that ‘functionings’ reflect the various things a person may value doing or being.  ‘Capability’, Sen has claimed, is thus a substantive freedom to achieve alternative ‘functioning combinations’. This nominally seems to bare some resemblance to Hamilton’s ‘freedom as power’ argument, in that both he and Sen argue that in order to achieve freedom I must be given the ‘ability’ to do so.  That is to say both of their ideas contain a triadic arrangement – a must be given b to achieve c.

But freedom, as the great liberal philosopher of the twentieth century Isaiah Berlin claimed, is a protean term and needs further qualification. This Hamilton does offer by mentioning the famous distinction that Berlin made between the ‘freedom to’ and ‘freedom from’.  ‘Freedom to,’ or what Berlin termed ‘negative liberty’, is the freedom to act in whatever way I choose without someone impeding me.  ‘Freedom from’ or ‘positive liberty’ is more difficult to define but loosely, as Hamilton states, it is the state of being ‘self-determining’.  This is essentially the kind of argument that Sen makes for freedom.  To be positively free I need a certain set of ‘capabilities’ in order to live unimpeded by poverty, my sex, my race, my own laziness and freedom from the social alienating forces that rob me of the ability to be fully human.

Positive freedom is a distinct idea from the negative freedom I might have because I am not in jail or that the state will stop me from voting. It is here where Hamilton goes against the grain of much liberal thought, merging the two ideas into one and calling it ‘freedom as power’ and defining it as ‘the power or ability to do X’. ‘Real modern freedom,’ he states, ‘is identified with and as power in that it conceives of freedom as a combination of my ability to determine what I will do and my power to do it or bring it about.’

This intuition, of having a combination of the two within society, is nothing new. As both Sen and Berlin noted, a combination of these two are needed in order to create what philosophers term ‘human flourishing’.  However Berlin warned and Sen observed, contrary to Hamilton’s idea, one should never merge the two ideas into one. ‘Nothing,’ Berlin stated, ‘can be gained from a confusion of terms’.  What was more Berlin claimed that there was a distinct danger in confusing the terms. And it is this confusion that is the major flaw in Hamilton’s thesis.

It is perhaps worthwhile exploring Berlin’s concerns about positive freedom if we are to understand what is wrong with the idea of Hamilton’s ‘freedom as power’.  Positive freedom, Berlin argued, writing against the backdrop of Nazi and Communist oppressions, can be dangerous because of its tendency towards essentialising.  That is to say that it claims (like most natural law theorists did from Plato, to Locke, to Hegel, to Marx and even in some instances to Rawls) to understand what it is to be human or states a set of needs which have to be fulfilled in order for people to be self-realising and self-determining.  We have, as Hamilton would himself acknowledge, inherited this discourse in most 21st century democracies in the form of human rights.  That is to say that human rights ultimately suggest that a certain set of human needs outrank others, or as Hamilton puts it, they act as ‘trumps’.

As philosophers like Berlin (and indeed Hamilton) have pointed out, although human rights are supposedly created to protect the weak, these rights can, at times, come into conflict with one another and contrary to their purpose they can end up favouring the strong over the weak.  As several commentators have shown with regards to Locke’s thesis that the primary Human Right is the right to property is that it merely results in the creation of a ‘dictatorship of the bourgeoisie’.  This is in fact at the very heart of Hamilton’s thesis as he states: ‘the human rights legal framework and structure of governance as secured by South Africa’s constitution of 1996 actually disempower rather than empower’. ‘Human rights,’ he goes on to say, ‘stop processes. They predetermine interests; they reify interests in a pre-political fashion.’

But this is ostensibly why Berlin argued for the distinction between positive and negative freedom.  And it is why ‘freedom as power’ contains within it an inner contradiction.  Combine freedom with the notion of human needs, Berlin suggested, and one loses the capacity to evaluate the needs in a piecemeal manner.  Suggest that certain needs are synonymous with freedom and one can begin to break some eggs in order to make the omelett.  This idea was at the heart of much of the mid-twentieth century liberal thinking expressed by Berlin, HLA Hart and Karl Popper. And certainly nothing sounds more Popperian than Hamilton’s statement that: ‘Politics is about processes, processes that identify, express, form, evaluate, prioritize and then meet needs, and these processes are best undertaken with as much participation and input by those whose needs will ultimately be met.’

The problem that Hamilton seems to miss in his ‘freedom as power’ is precisely the one Berlin pointed out was the problem with most ‘positive freedom’ theories.  That is to say that ‘needs’ are not uniform and that power is not inclusive.  Addressing the needs of the poor is merely the reverse of addressing the needs of the rich.  The ‘dictatorship of the bourgeois’, which the human rights discourse has created in South African politics, might very well, under Hamilton’s terms, merely become the ‘dictatorship of the majority’ which was the problem the Constitution had originally set out to solve.

Herein lies the flaw in Hamilton’s ‘freedom as power’ thesis.  That is to say that he confuses ‘needs’ with ‘freedom’, or to put it differently he confuses positive freedom with negative freedom.  The freedom to access medicines and the ability to access them are two distinct political problems which require two distinct sets of solutions – the ability to access them may in fact even infringe on certain other freedoms like the freedom of choice.  As Berlin opined in his seminal ‘Two Concepts of Freedom’, to offer political freedom to men who are ‘half naked, illiterate, underfed and diseased’ is ‘to mock their condition’, what they need is positive freedom – or as Dostoyevsky once noted, that if you wish to walk then ‘boots are superior to the works of Shakespeare’.

Here Mandela as quoted above, like Hamilton, was mistaken.  The freedom from the oppression of apartheid and the ability to access social goods are different problems that can’t be combined into one encompassing idea.  What is at the heart of this problem is that Hamilton suggests that the power to be able to do something is synonymous with the freedom to do it. Here he fails to acknowledge that power is an exclusive notion not an inclusive one. Power has little to do with freedom in the negative Berlinian sense.  After all if I have the power to do something, it invariably means that I am excluding others from that same action.  As Berlin pointed out, choice and action are always acts of tragedy in that they, more often than not, exclude others from the same choice or action and that in choosing I lose my ability to take the other course of action.  In an open society, both Berlin and Popper argued, we must always be aware of this and be cognisant that the only solution to this problem is tolerance, compromise and trade-offs.  This, within a South African context, is almost non-existent within our polity.

The needs of the poor in South Africa drastically require succor.  Hamilton is on the money when he suggests that the discourse of human rights, the policies of Thabo Mbeki, the corruption of Jacob Zuma and the almost criminally dispassionate engagement and denial of a largely white creditor-class have denied them access to social goods. However to suggest that the ‘positive freedoms’ that people are in need of are linked to the negative freedom that was attained at the end of apartheid is a mistake.  It is a mistake that the human right’s discourse has made before and what Hamilton’s ‘freedom as power’ also seems to be offering.

Although Hamilton claims that ultimately South Africans are not free he is in fact mistaken.  They are.  South African’s are ostensibly politically free.  What the vast majority lack is access to social goods.  This however is not to deny that Hamilton is broadly speaking correct in all of his assumptions and explanations.  His insistence that the position of South Africa’s poor and underprivileged will be dramatically improved by a proper deliberative and representational legislature is undoubtedly correct.  However, the confusion of ideas in his ‘freedom as power’ theory may simply lead to yet another oppressive and undeliberative form of government because of its inner contradiction.

However, what is surprising in Hamilton’s Are South Africans Free? is his lack of acknowledgment of its liberal underpinnings. He also more subtly points to Popper’s liberal theory that all government policies involve empirical predictions which can frequently turn out to be wrong and so should be under a constant process of scrutiny and reform.  As Hamilton repeats ‘needs and interests are never pre-existing and fixed’. Of course in South Africa the term liberal has a certain pejorative undercurrent which Hamilton is probably seeking to avoid.  Liberalism is certainly, as Tony Judt once said, ‘the politics that dare not speak its name’.  Nevertheless one can’t help but feel that Hamilton’s excellent evaluation of the current state of South Africa could strengthen with a better understanding and acknowledgement of liberalism.  Liberals, as Judt went on to say, are after all ‘the canaries in the sulfurous mine shaft of modern democracy.’

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