Will ratifying the right to work help the unemployed?

Any debate about the right to work must include the unemployed, says unemployment activist Plaatjie Mashego. (Oupa Nkosi, M&G)

Any debate about the right to work must include the unemployed, says unemployment activist Plaatjie Mashego. (Oupa Nkosi, M&G)


If only it was as easy as putting a signature to paper.

Nelson Mandela had spent barely six months in office when he signed the United Nations’ International Covenant on Economic, Social and Cultural Rights in October 1994.

But it would take a substantial amount of lobbying for South Africa to ratify the covenant, or treaty. Twenty years and three months of coaxing, to be precise.

In January this year, South Africa ratified the international covenant, which requires of it, among other things, to recognise the right to work. With an unemployment rate at 25%, analysts wonder what this new obligation could mean.

It is not clear whether the treaty means South Africa must amend its Constitution to include the right to work. Will “the right to work” mean guaranteed jobs? Or, at the very least, does the treaty guarantee the right to more jobs being created?

It’s a debate that probably has its rightful place in the world of the abstract, but it is headed for the mainstream despite its potential irrelevance.

Binding treaty
The treaty is binding. Some view it as successfully guaranteeing in-alienable socioeconomic rights in international law for the first time.

Many of these rights are already recognised by the South African Constitution. But the covenant goes a step further than the Constitution: states must also recognise the right to work.

Richard Pithouse, a politics lecturer at Rhodes University, says it is highly unlikely that South Africa would recognise the right to work. He says an aggressive and well-funded campaign to have the Constitution amended to include this right was run shortly after the end of apartheid. The campaign fell on deaf ears.

In any event, Pithouse is part of a school of thought that believes the mere existence of a right has little to do with whether that right is a lived reality.

“There’s a right to housing. It doesn’t get people houses,” he says. “There’s a right to safety but people aren’t safe.” 

He says these rights “on paper” are “meaningless, unless those people become politically empowered with regard to the state and capital”.

Word of warning
Another word of warning regarding rights comes from Patrick Bond, a political economist at the University of KwaZulu-Natal, who cautions against a tendency to “jump to a rights lifeline” without a proper analysis of the economy.

The covenant exposes a legislative vacuum in South Africa in its response to tackling unemployment, says Professor Avinash Govindjee from the Nelson Mandela Metropolitan University in Port Elizabeth.

The covenant says states must take progressive steps to realise socioeconomic rights. And states must do this using “appropriate means, including particularly the adoption of legislative measures”.

In lay person’s terms, South Africa must pass a law that would give effect to the right to work.

But pundits say that international jurisprudence on this score is far from settled. Domestically, too, research on the matter is minimal, and much of it is now being pursued following the ratification of the covenant. The Mail & Guardian understands that lobbying for the right to work could take place publicly, and soon.

The ANC referred queries about its position on the right to work to its head of economic transformation, Enoch Godongwana, who was unable to comment by the time of going to print.

‘Piecemeal’ policies
At a labour law conference in Johannesburg last week, Govindjee called South Africa’s policies on addressing unemployment, such as the Expanded Public Works Programme, “piecemeal”. He intimated that these policies did not meet the requirement of the “legislative steps” the treaty demands.

Technically, South Africa could be required to amend its Constitution to recognise the right to work, Govindjee says.

But Jackie Dugard, an associate professor of law at the University of the Witwatersrand, disagrees.

She says the covenant requires government to “have a reasonable policy in place to recognise the right”. And so, with its current policies, South Africa has “arguably” met the minimum requirements on that score.

Dugard was part of the coalition that lobbied government to ratify the treaty.

South Africa now has to report to a UN committee to show how it is taking steps to implement the covenant, she says. “Government does not have to recognise work as a constitutional right,” she says. But the committee might well “flag” South Africa’s unemployment rate – now officially at 25%.

‘Wrong direction’
“They might say, you’re going in the wrong direction here,” Dugard says. “It’s a possibility.”

But Govindjee says a case for noncompliance could be made, because South Africa’s steps to tackle unemployment were “policy schemes, not legislative action”.

Yet even if the Constitution were amended to recognise the right to work, what effect would this have on unemployment?

Govindjee believes it would, at the least, galvanise Parliament to pass laws that would bind government to tackling unemployment.

He says the “legislative vacuum” regarding unemployment could “stem from an absence of constitutional direction”. “Maybe Parliament takes its cue from that absence.”

Long-standing demand
Pithouse says the right to work is a long-standing demand in “certain kinds of socialist politics”.

But there is no silver bullet for unemployment. “All the right to work would do would give people a leverage point to say their rights are recognised,” says Pithouse. “A lot of people think there is a technocratic silver bullet. But the lesson we’ve learnt in a lot of spheres is that having the right laws and policies doesn’t guarantee the fulfilment of these rights. What is needed is organised campaigning and popular consensus around policies.

“If [the right to work] is a substitute for that kind of political work, it isn’t going to be effective.”

Bond takes a cautious approach to attempts to legislate away unemployment.

“Lawyers can do great things,” he says. But jurisprudence has shown that, eventually, many cases involving socioeconomic rights “hit the ceiling” when it comes to implementation, “because of what the system won’t allow”.

Detailed analysis
Bond says it is critical that a detailed analysis of the “economic terrain” needs to be done before a legal approach to the issue is taken.

In any event, Bond points out that this jobs covenant is not the first time that an international treaty has established the right to work as a universal human right. The UN’s 1948 universal declaration of human rights also unequivocally says that everyone has the right to work. Apartheid South Africa abstained from the vote for the declaration.

The African Union’s African Charter on Human and People’s Rights similarly recognises the right to work.

Dugard believes that a constitutional amendment would be unnecessary. Not only is South Africa not required to do this, she says, but “my personal view is that we don’t need more policies”. It is implementation of policies that would reduce unemployment, she says.

Plaatjie Mashego, an unemployment activist, says any debate about the right to work must include the unemployed. He said that all other forums established to discuss tackling unemployment have been dominated by government, business and established labour.

This must be the starting premise of the debate, he says.

Sarah Evans

Sarah Evans

Sarah Evans is a Mail & Guardian news reporter.She's a recovering musician who became a journalist while interning for the Diamond Fields Advertiser in Kimberley.She spent three years reporting there before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane).Her areas of interest include crime, law, governance, and the nexus between business and politics.Her areas of disinterest include skyscrapers. Read more from Sarah Evans


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