The draft of the Bill of Rights is a victory for South Africa’s poor, writes Gaye Davis
THE first complete draft of a new Bill of Rights, laid before a Constitutional Assembly committee this week, represents a major victory – not for any one party, but for the country’s poor and powerless.
The draft includes important clauses that were absent in the interim constitution and which guarantee people’s rights to adequate housing, health care, social assistance, clean water and enough food. Whether or not to include such social and economic rights in the final constitution has been a key debate in the constitution-making process.
Earlier this year, more than 200 organisations — including development groups, the South African National Civic Organisation, churches and human rights bodies like the Black Sash — united around a campaign to lobby for the inclusion of such rights, and for them to be justiciable.
At a Constitutional Assembly hearing in August, Development Action Group director Jacqui Boulle argued the constitution would be a meaningless piece of paper for the majority of South Africans if social and economic rights were not enshrined in it.
“What is the right to access to information if you are homeless and poverty stricken?”, she asked — making the point that by excluding social and economic rights, other rights in the constitution would in effect be undermined.
Arguments against this from the business sector, property owners, academics turned on a range of concerns. While the importance of social and economic rights could not be denied, enshrining them in the constitution raised a number of issues. It was argued that government would be unduly burdened by making promises that the state of its fiscus would not allow it to keep, that unrealistic expectations would be created and not met, that it was unaffordable.
There were warnings that making socio-economic rights justiciable would effectively put the courts above parliament, usurping the legislature’s role in determining social policy. It was suggested that if they were included at all, socio-economic rights should be expressed rather as broad “directives”.
But there were those, including Land Affairs Minister Derek Hanekom and Water Affairs Minister Kader Asmal, who argued that government programmes to redress past inequities would not work without a formal political commitment to socio-economic rights.
And Boulle argued that this would not mean handing courts the role of social policy making. Instead, it would create a framework within which government could make law and policy and the courts could test the validity of decisions going against the spirit of the constitution.
All rights cost money and involved state resources, she said. The right to vote meant meant the state had to set up a costly electoral system. The importance of the right to a functioning democracy outweighed the cost of including it in the constitution.
“Similarly, I would argue that the importance of the right to land, shelter, education, health, an adequate standard of living and a clean environment also outweighs the costs of not including these rights in the constitution and destroying our fragile democracy.”
Entrenching the right to adequate housing did not mean people could demand a four-roomed house. But it would demand a “policy, legislative and administrative environment” in which such a right could be realised — and prevent the state from ignoring or removing rights to housing.
With rights came obligations, Boulle said and with housing would come the responsibility to maintain it, or to pay for services. But these obligations could not be demanded if the rights were not entrenched.
By including socio-economic rights, the draft Bill of Rights avoids a situation where some rights and interests enjoy more weight than others. Nor are the clauses formulated in terms of giving everyone the immediate right to housing, health care and so on. Instead, they are couched in terms of the state having to take “reasonable and progressive measures” to make them realisable.
That will remain the task of parliament. But if the laws it passes and the policies it approves do not meet the constitutional commitment the Bill of Rights sets out, it will have to justify this before the courts.
In essence, the draft Bill of Rights gives the most disadvantaged an equal status under the supreme law of the land.
It’s about saying that the other rights in the draft bill — to life, liberty and equality — cannot be enjoyed in the abstract; that you cannot separate people from their social and economic conditions. Defining such rights as “second and third generation” implies they are less valuable, yet their realisation has been the core of the struggle for equality and justice in South Africa, and since the end of the Cold War there has been a worldwide trend away from making such a distinction, in favour of a more holistic view of human rights.
We can learn a lesson from Canada here. Its charter is silent on social and economic rights. In his submission to the Constitutional Assembly hearing in August, Canadian civil rights lawyer Bruce Porter said this meant the courts often rule against poor people’s claims — on grounds that social and economic rights were not constitutionally protected.
“Rights enhance democracy by creating ennabling processes for those least likely to have an effective political voice,” he said. If a constitution’s key function was to ensure democracies did not ignore the rights of their most vulnerable citizens, then denying their social rights constitutional status would seem “to thwart the very purpose of having a constitution”.
The draft clauses will be subjected to public comment and political horsetrading as the constitution-making process moves towards its end. The fact that socio-economic rights are contained in the draft will make it difficult for them to be removed — but much will depend on the lobbying of non- governmental organisations to see they get cast in stone.
A last word from Porter: “South Africans should avoid becoming entangled in the conceptual conundrums surrounding social and economic rights. The essential question is what (these) rights mean to the people who claim them and what it means to a constitutional democracy if these claims are ignored or rejected.”