Prepare Now For The Second Revolution
The writing of a new Bill of Rights provides the chance to bring a second revolution in citizen’s rights, argue Water Affairs Minister Kader Asmal and academic Ronald Roberts
THE first rights revolution in South Africa has ended the political powerlessness of the majority of citizens. The second must overcome the continuing reality of economic disenfranchisement.
The embattled United States civil rights movement provides a cautionary tale: tragedy follows if we fail to pursue economic rights after winning political rights.
There remains a risk that, long after its civil and political carcass has been laid to rest, apartheid’s dead hand may still throttle the country. Our courts have an important role to play in ensuring that this does not happen.
It is widely acknowledged that the new government faces a daunting task in balancing the legitimate aspirations of the South African majority against the demands of a privileged minority.
This debate does not occur in a legal vacuum: South Africa’s new constitution, in tandem with international law and human rights norms, sets the ground rules. The final constitution should go further than the interim document does in placing certain fundamental human rights beyond the reach of expediency.
Equality in health and nutrition, equal access to water and to a livelihood that satisfies the basic requirements of subsistence, equal rights to a home and to a place in school—these basic needs, no less than the right to vote, may now legitimately be placed before South African courts.
These rights are protected by international human rights norms; international human rights norms are expressly incorporated into the interpretation of the interim South African constitution. The goal of meeting basic human needs should therefore have a clear constitutional status in South Africa now.
Unequal access to, and indirect discrimination in the provision of, basic goods should now be viewed not only as a cause for eloquent political handwringing, but also as a matter for constitutional litigation.
The equality clause of the interim constitution outlaws “indirect” discrimination and thus arguably provides sufficient room for a humane and proactive Constitutional Court to review the racially skewed provision of basic necessities in many areas of South African life.
Alternatively, like the Indian Supreme Court, South Africa’s tribunal might interpret the interim document’s “right to life” and human dignity in a way that recognises social and economic rights.
Yet these vital social and economic rights should not be left to the vagaries of imaginative legal interpretation. The final document should more explicitly entrench these basic rights, lest they slip from view as powerful interests clamour for a selectively strict monetary policy, for privatisation, and for the disembowelling of the reconstruction and development programme’s projected investments in human capital. The Interim Constitution recognises children’s rights to nutrition, a massive concession by Kempton Park negotiators to second generation rights. The principle has therefore been conceded. It must now apply to all citizens.
Every significant fundamental rights instrument since the 1948 Universal Declaration of Human Rights speaks of the indivisibility of two sets of rights: civil and political rights on the one hand, economic and social rights on the other. Yet some legal theorists continue to treat economic and social rights as a second-class category of rights.
The materially secure women and men who populate the legal profession often appear to think that economic and social rights belong to the category of charity and consensus, rather than that of enforceable legal rights.
For instance, the US constitution provides a fundamental right to bear arms to protect one’s self and home, but no enforceable right to a home itself. By contrast South Africa’s interim document, potentially the most humane constitution in the world, offers a chance to reverse this kind of anomaly.
Job security, a reliable and unpolluted supply of water, an environment that is cleaned up at the expense of those who profit through dirtying it—these are not just nice things, they are fundamental rights and should be constitutional ones.
This idea of constitutional rights challenges an unattractive and bureaucratic vision, now being promoted in South Africa, of what the new constitution and the new Constitutional Court, should be. In this bureaucratic picture, the lawyers of the future must essentially resemble the lawyers of our past. The legal rights of the future must look like the familiar legal rights of the past—the only new thing is that now more people (black ones) are to have formal access to these old kinds of rights.
However, constitutional rights are not simply about what people can do to each other, or about what the state can do to its citizens. Constitutions also regulate what the state must do for its citizens.
Our new court must tell us what it would be illegal for our new state to overlook, must tell us to whose aid the new state must speed. The new court must outlaw unconscionable governmental omissions. Our new constitutional jurisprudence must deny that political freedom can exist within economic misery, must insist that the right to speech is effectively muted without a right to education.
South Africa has the chance to avoid the mistakes of the world’s older and flawed constitutions. Our new court must safeguard positive liberties.
The constitution enshrines the right to equality. In the many areas where the facts about our country reveal continuing race-related disparities, there are constitutional cases waiting to happen. Our lawyers—more so our judges—must not allow themselves to be corralled into being political, emotional, and moral eunuchs. That would castrate our new constitution.
Professor Kader Asmal is Minister of Water Affairs and Forestry and honorary professor of human rights at the University of the Western Cape. Ronald Roberts is staff attorney, Centre for Economic and Social Rights, New York