Including social and economic rights in the Constitution could lead to an inflated welfare state or place South African citizens in the 20th century, writes Dennis Davis
THE case for the inclusion of social and economic rights in the final Constitution has been long and intensely debated ever since it became clear that South Africa would become a constitutional democracy.
Those in favour of the inclusion of rights to housing, health care, food and clean water into our Constitution argue that to exclude these entitlements from constitutional guarantee and only to provide safeguards for political and civil rights, is to guarantee an impoverished concept of citizenship.
In short, South African citizenship which provides for the right to vote but turns its back on starvation and homelessness would guarantee a most stunted and distorted democracy. To argue only for civil and political rights is to hold South African citizenship in a 19th century time warp, hardly appropriate for a society with our legacy.
Game, set and match to the advocates of social and economic rights, you say! But their opponents do have a case. They suggest firstly that the implementation of social rights can only cause a bureaucratic inflation of the welfare state, in that they require resources and expertise for the delivery of the benefits.
Secondly, it is argued that the politics of rights creates a competitive environment in which each interest group strives to trump the legitimate claim of the other. In other words, lawyers do not promote community, only adversarialism. Take the way in which divorce lawyers generally succeed in inflaming passions and turning relatively mild mannered disputing parties into Saddam Hussein-style negotiators.
Thirdly, the implementation of social and economic rights reduces the scope for political struggle for such entitlements and places increasing power in the hands of an unaccountable and unelected judiciary.
Most constitutions which guarantee such rights employ the language of aspiration, setting out social rights as goals to be achieved rather than concrete rights to be enforced by a court. For these reasons, thus, the drafters of the new text have been careful in the formulation of the promises guaranteed in their draft Bill.
There are rights of adequate housing, health, social assistance, clean water and food, apart from children’s rights and the right to education presently contained in the current Constitution. In general each of these rights is described either as a right to reasonable and appropriate assistance from the state to secure adequate housing and social assistance, or the state must take reasonable and appropriate measures to make health care, clean water and sufficient food available to all.
The intention of the draft is to allow the state maximum flexibility in the implementation of these entitlements and to restrict the court’s role to that of review; that is, the power to compel the state to justify its social and economic policy in these designated areas and to show reasonable cause why it is only able to achieve the particular kind of programme adopted by it.
If we South Africans demand that these entitlements be given constitutional force then the drafters have done a splendid job.
The judiciary, however, will now be an even stronger body with the effective power to review the Budget and other distributive decisions taken by government.
One wonders whether those advocates of these rights who are now in government are still as enthusiastic about these provisions! Perhaps that’s the best reason for their inclusion.
Professor Dennis Davis is director of the Centre for Applied Legal Studies at the University of the Witwatersrand