We have no right to unfairly judge others’ rights

As we come out of pride month and youth month, it is worth reflecting that when the bill of rights uses the word “ everyone ” in the equality clause it means just that It gives equal protection and benefits of the law to everyone

The ink was hardly dry on the constitution in 1995 when the Constitutional Court declared the death penalty unconstitutional and explained the values that have protected all of us ever since While public opinion may have some value, it is no substitute for upholding the values in the bill of rights, if necessary by recourse to the courts, without fear or favour

If public opinion were decisive, there would be no need for the Constitutional Court because parliament has a mandate from the majority of the public That argument was relied on by the apartheid regime The very reason for the establishment of the new legal order is to protect the rights of minorities and every individual Someone convicted of murder has the same rights to equal protection as the president

This has been starkly illustrated recently in relation to the theft of money from the farm of the president We have heard hundreds of times from the media and the public that “he owes us an explanation” Any lawyer will advise you that, if a charge is laid against you, there is a right to remain silent Like most principles in law, the Romans had a phrase for it: nemo tenetur se ipsum accusare (“ no person is bound to accuse themselves”) That right to silence, which can be exercised by everyone even when accused of a misdemeanour, is one of the many rights that must be respected

Pride month reminds us that no-one may unfairly discriminate against others on any of many systemic grounds mentioned in the bill of rights Gender, sex and sexual orientation are only a few of the prohibited grounds But this does not mean people with a different gender or sexual orientation to you or me is any sense different from anyone else in relation to basic human rights It is not a question of being fair to people, say, who fall within LBGTQI+ gender or orientation That label is not necessary because there is a separate LGBTQI+ community Labels become necessary because people unfairly discriminate against others, even against those in the majority as in the case of the universal discrimination against women That differentiates us from, for instance, the US constitution where politicians can load the courts with judges holding a specific view and override years of entrenched and established basic rights

In SA the core value of our constitution is human dignity The courts have recognised many times that the right to employment is an essential part of that obligation That right begins with every child being entitled to basic nutrition and basic education, made accessible through reasonable measures by the state These are not rights invented for our constitution You don t need international conventions nor bills of rights to recognise how important it is that we embrace these rights practically and not just conceptually It starts from the recognition that everyone means everyone

This brings me back to the point that the bill of rights protects what the

Constitutional Court, in the death penalty case, called the social outcasts and marginalised people of our society People are not marginalised because of anything they have done

They are marginalised because other people impose self-created values that discriminate unfairly

A simple example: sex work in SA is criminalised

The law assumes that sex workers are deliberately embarking on criminal acts

This is inexcusable in a country with the levels of unemployment and poverty of SA If a country like New Zealand can decriminalise sex work, what possible basis can there be for not doing so in our constitutional democracy where most of those involved in sex work are involved out of necessity, not choice And even it that were not the case, there is no reason and no constitutional basis for sex workers to be marginalised and criminalised

Pride month and youth month are just examples of the bigger picture We recognise the basic rights of people in all kinds of ways

There is some right or other being celebrated on virtually every day of the calendar These are not rights of separate classes of persons we have to give special attention to We are all equal individuals

Every case is an example of why everyone not only has equal rights but that everyone has an obligation not to judge unfairly whether any other individual has equal rights

● Patrick Bracher (@PBracher1) is a director at Norton Rose Fulbright