Justiciability Of Socio-economic Rights Research Articles

Applying a Human Rights Lens to Poverty and Economic Inequality: The Experience of the South African Human Rights Commission

The Constitution of South Africa, 1996, is committed to redressing poverty and inequality. This is evident in its inclusion of a range of justiciable socio-economic rights along with a strong substantive right to equality and non-discrimination. The South African Human Rights Commission is a state institution established by the Constitution to support constitutional democracy. It has wide-ranging powers to investigate, monitor and protect human rights, including an express constitutional mandate in relation to socio-economic rights. This article examines how it has sought to apply its constitutional and legislative mandates to various manifestations of poverty and economic inequality in South Africa. It focuses on three broad areas of the Commission’s work with a view to identifying its achievements as well as some of the key challenges it has faced. Based on this analysis, the article concludes by reflecting on the broader implications of the experience of the Commission for fourth branch institutions, specifically national human rights institutions, that apply a human rights lens to poverty and economic inequality.

Justiciability of Socioeconomic Rights in Nigeria and Its Critics: Does International Law Provide any Guidance?

A recalcitrantly enduring polemic in the annals of human rights and constitutional law jurisprudence in Nigeria centers on whether socioeconomic rights are justiciable in the country. This burgeoning controversy is rooted not only in the balkanization of the two principal genres of human rights and their compartmentalization into distinct parts of the Constitution, namely Chapters II and IV respectively, but also in explicitly baptizing one as ‘fundamental rights’ whilst denying similar appellation to the other. Adding to this obfuscation is deafening silence on the part of the Supreme Court of Nigeria, thereby fueling the belief, in many circles, that domestic legal frameworks do not bestow recognition upon socioeconomic rights. But does this understanding represent the correct position of the law? Does international law offer any guidance? Responding to these questions is the task of this paper. Its central contention is that current reality, made more evident by international human rights law, leans toward justiciability of socioeconomic rights.

Towards a Right to the City?

Abstract This article illustrates the transformative potential of guaranteeing justiciable socio-economic rights in domestic law, by engaging with the judicial vindication, over nearly a quarter-century, of the right to housing in the South African Constitution. Initial assessments of housing rights litigation in the country suggested that, while the right provided temporary protection against eviction and could provide temporary relief in housing emergencies, it was of limited use in addressing spatial injustice and unequal access to affordable housing. But over time, judicial vindication of the right to housing has given poor and vulnerable communities a foothold in cities, which is productively being leveraged by social movements claiming a right to the city. Meanwhile, separate remedial frameworks around land rights and political participation appear to be slowly converging with the housing jurisprudence, in ways that hold significant potential for transformative change in South African cities.

Promoting Sustainable Goals in Nigeria through the Kaleidoscope of the Social Protection Floor Initiative

Improving national social protection systems is a major task for all governments. This they can do through an effective implementation of the sustainable goals also called the Sustainable Development Goals (SDGs). The main purpose of social protection is to reduce poverty, economic shocks and vulnerability. This article examines the extent Nigeria has gone to in order to promote sustainable goals through the Social Protection Floor Initiative. The article also delves into the justiciability of socio-economic rights in Nigeria and in other jurisdictions like UK, India and South Africa which are commonwealth countries like Nigeria. It further recommends ways by which Nigeria can, through the Social Protection Floor Initiative, fulfil its obligations towards the attainment of the SDGs. A major conclusion of this article is that the Social Protection Floor Initiative is an important means for the government to achieve the Sustainable Development Goals, and an important aspect of this is ensuring the enforcement of socio-economic rights. Without implementing the Social Protection Floor Initiative, the Sustainable Development Goals mantra will be restricted just to TVs in Nigerian homes without any corresponding impact on the masses.

Justiciability of Socio-Economic Rights Under the Constitution of Malawi: Unbundling the Right to Development

Most governments in sub-Saharan Africa have for long steered away from giving legal force to socio-economic rights, even though political and civil rights have had due recognition for some time. The main reason is that socio-economic rights are polycentric, meaning their justiciability has resource implications which most governments cannot fulfil in a short space of time. There has been a shift though, since South Africa enacted its Constitution after 1994, ushering in a new period where socio-economic rights not only became recognised but they were also given legal force, albeit with limitations. Malawi followed suit and enacted a new Constitution in 1994 which was unlike the earlier ones that did not recognise socio-economic rights. The only anomaly is that the Constitution does not put all socio-economic rights under the Bill of Rights, meaning that even though some of these rights now have legal force, others such as the right to health do not. These were drafted as principles of national policy, which are just guidelines referred to when the government is making policy. There is a redeeming factor though, which is the right to development. This article contends that all the socio-economic rights that are recognised as principles of national policy do have legal force under the right to development. Even though the right to development is not qualified, the social rights under it are justiciable and it is up to the courts to give them the correct interpretation.

Dutifully Defying Death: A Right to Life-saving Emergency Treatment

Article 12 of the International Covenant on Economic, Social and Cultural Rights provides for the right to health. Two questions are considered in this article. Does this right entail a more specific right to life-saving emergency treatment? And if so, should the latter right become justiciable in the domestic courts? Two propositions will be made in this article. First, the right to life-saving emergency treatment is a necessary component of the right to health. Second, the conventional arguments against the justiciability of socio-economic rights do not apply to the right to life-saving emergency treatment. Such a right should be justiciable at the domestic level.

SOCIO-ECONOMIC RIGHTS IN ZIMBABWE'S NEW CONSTITUTION

1. Introduction The constitutionalisation and justiciability of socio-economic rights has always been debated among scholars and practitioners. While everyone agrees that every constitution should encompass socio-economic rights there is still disagreement on whether they should be under the Bill of Rights or Principles of State Policy. The constitutional debate in Zimbabwe also included such discussions which resulted in the inclusion of socio-economic rights as both National Objectives (Principles of State Policy) and Declaration of Human Rights (Bill of Rights), under chapter two and four respectively. Though this is a welcome move towards the progressive realisation of socio-economic rights the big question remains whether this will improve the protection and promotion of these rights, subsequently bringing change to people's lives. This overview provides a critical analysis of the new constitution and offers recommendations for the improvement of the socio-economic rights regime in Zimbabwe through courts, state institutions and government. 2. The new Constitution The preamble of the new constitution (1)) recognises the supremacy of God and gives special recognition to the liberation struggle, natural resources, diverse culture, democratic values, rule of law and fundamental human rights. It values the principles of rule of law, fundamental human rights and freedoms, gender equality, good governance and representation of the electorate and places an obligation to the State to protect and promote these values and principles. Though the preamble of the constitution has no legal standing it spells out the purpose of the constitution and it reflects the goals and commitment of government. It is an introductory statement and courts can refer to it on cases pertaining to the constitution as reliable evidence of what the state has promised to achieve and provide for citizens. The preamble commits the state to uphold and defend fundamental human rights and freedoms, which include socio-economic rights. The protection and promotion of socio-economic rights serve to support the commitments set in the preamble, such as transparency, freedom, tradition and culture, fairness and equality. In countries such as South Africa where the preamble is not legally binding, the courts have interpreted the commitments highlighted in the preamble in, for example, the Bato Star Fishing (PTY) LTD vs Minister of Environmental Affairs and Tourism case, interpreting the commitments in the preamble as an obligation on the state. In addition to traditional civil and political rights, the new constitution contains a full catalogue of economic, social, cultural and environmental rights. This includes every person's right to an environment that is not harmful to their health or well-being (section 73); and an obligation to protect the environment for the benefit of present and future generations, through reasonable legislative and other measures. Section 75 (rights to education) entitles every citizen and permanent resident of Zimbabwe to a basic state-funded education, including adult basic education and further education, which the state, through reasonable legislative and other measures, must make progressively available and accessible. This is in line with article 13 of the International Covenant on Economic, Social and Cultural Rights (CESCR). It remains to be seen whether the Government will implement the constitution and enforce the right of girls in some rural areas of access to education where they have been hindered by traditional practises. Section 76 (right to health) confirms the right of every citizen and permanent resident of Zimbabwe to have access to basic healthcare services, including reproductive health. Every person living with a chronic illness has the right to have access to basic healthcare services for the illness. No person may be refused emergency medical treatment in any health-care institution. …

Normal Rights, Just New: Understanding the Judicial Enforcement of Socioeconomic Rights

Abstract A common skeptical view holds that socioeconomic rights are a different kind of right than civil-political rights. Even those who support justiciable socioeconomic rights often see them as a different kind of right with special challenges. I argue that this view is wrong. What all these observers are reacting to is not an inherent property of socioeconomic rights: it is a contingent property of a situation in which judges are asked to enforce a rights claim without a pre-existing set of familiar public understandings of the right’s content and/or an existing structure of officials and procedures to give effect to that content. It is because the rights claim is new, and this is something that can be, and often is, true of rights across the spectrum. Any rights claim is problematic to enforce to the degree that it is new, but these obstacles can and do disappear if society changes and the claim becomes less new. In the first part of the Article, I seek to establish the accuracy of this argument, drawing on examples of rights distinctions from the nineteenth-century United States and rights across the spectrum displaying newness in contemporary South Africa and India. I then show how controlling for newness can help us to understand standard features of the socioeconomic rights debate: the ubiquitous, but misleading, negative–positive distinction; arguments about resources; Fuller’s endlessly cited polycentricity argument; and current controversial cases, such as the budget-shifting judicial enforcement of Latin American healthcare entitlements. These topics are central to our widespread intuition that socioeconomic rights are different; newness can help us to see that this intuition is misleading us, and by recalibrating the debate can filter out some distractions that have long dogged it.

Justiciability of the Right to Water in the SADC Region: A Critical Appraisal

Weak justiciability of socio-economic rights almost circumscribes the trajectory of socio-economic development over time as individuals whose rights are violated cannot easily get a remedy through courts, which negatively affects the latter’s ability to meaningfully realize their development potential. The available literature on this issue is scant and disorganised and hence necessitating a critical appraisal. This review focuses on the justiciability of the right to water in the Southern Africa Development Community (SADC) focusing particularly on South Africa and Malawi. This is because socio-economic rights are clearly justiciable under South African law as opposed to the other SADC countries where national constitutions do not enshrine the right to water, and at best, the right to water can only be inferred from the right to life and to development. Deriving the right to water from other rights, and especially those that impose a negative obligation on the state, masks its importance and the likelihood that it can be justly adjudicated on. It is argued herein that for most of the other SADC countries to realize the right to water, the law should be crafted to expressly protect the right to water and this must be obvious in the respective constitutions, as well as other related water laws. This will enable courts to adjudicate disputes concerning water and possibly evolve jurisprudence that is responsive to the water needs of people according to their circumstances.

Justiciability of Socio-Economic Rights in Ethiopia: Exploring Conceptual Foundations and Assessing the FDRE Constitution and Judicial Perspective

Inclusion of bill of rights in domestic legal framework and rendering socio-economic rights justiciable is one of the main mechanisms through which such rights get effective enforcement. The Ethiopian (FDRE) Constitution has recognized socio-economic rights. It empowered ratified international human rights treaties to serve as standards of interpretation for the bill of rights recognized in the Constitution, many of which treat socio-economic rights as justiciable. However, the Ethiopian judiciary is reluctant to apply human rights provisions recognized in the Constitution, including socio-economic rights. It is argued that this is mainly attributed to the confusion existing as to the power of interpreting constitutional norms and their application, and the status of international treaties in domestic arena. The continued but waning debate over justiciability of socio-economic rights across the globe has also contributed its share, though insignificantly. This article, in an attempt to ascertain justiciability of socio-economic rights in the Ethiopian legal system, explores the conceptual foundations, and analyzes the normative provision of the FDRE Constitution and judicial perspective regarding justiciability of socio-economic rights.

Some Comments on Water Rights in South Africa

Human life, as with all animal and plant life on the planet, is dependant upon fresh water. Water is not only needed to grow food, generate power and run industries, but it is also needed as a basic part of human life. Human dependency upon water is evident through history, which illustrates that human settlements have been closely linked to the availability and supply of fresh water.
 Access to the limited water resources in South Africa has been historically dominated by those with access to land and economic power, as a result of which the majority of South Africans have struggled to secure the right to water. Apartheid era legislation governing water did not discriminate directly on the grounds of race, but the racial imbalance in ownership of land resulted in the disproportionate denial to black people of the right to water. Beyond racial categorisations, the rural and poor urban populations were traditionally especially vulnerable in terms of the access to the right. 
 The enactment of the Constitution of the Republic of South Africa 1996, brought the South African legal system into a new era, by including a bill of fundamental human rights (Bill of Rights). The Bill of Rights makes provision for limited socio-economic rights. Besides making provision for these human rights, the Constitution also makes provision for the establishment of state institutions supporting constitutional democracy. 
 The Constitution has been in operation since May 1996. At this stage, it is important to take stock and measure the success of the implementation of these socio-economic rights. This assessment is important in more ways than one, especially in the light of the fact that many lawyers argued strongly against 1/2
 the inclusion of the second and third generation of human rights in a Bill of Rights. The argument was that these rights are not enforceable in a court of law and that they would create unnecessary expectations of food, shelter, health, water and the like; and that a clear distinction should be made between first generation and other rights, as well as the relationship of these rights to one another.
 It should be noted that there are many lawyers and non-lawyers who maintained that in order to confront poverty, brought about by the legacy of apartheid, the socio-economic rights should be included in a Bill of Rights. The inclusion of section 27 of the 1996 Constitution has granted each South African the right to have access to sufficient food and water and has resulted in the rare opportunity for South Africa to reform its water laws completely. It has resulted in the enactment of the Water Services Act 108 of 1997 and the National Water Act 36 of 1998.
 In this paper the difference between first and second generation rights will be discussed. The justiciability of socio-economic rights also warrants an explanation before the constitutional implications related to water are briefly examined. Then the right to water in international and comparative law will be discussed, followed by a consideration of the South African approach to water and finally, a few concluding remarks will be made.

The Enforcement of Socio-Economic Rights

In recent years the South African legislature has made a very bold attempt to improve the socio-economic conditions of citizens. Amongst others, the Social Assistance Act 59 of 1992 provides for monthly payments to citizens under certain prescribed conditions. In situations where other legislation does not provide a remedy for those unable to care for themselves the Constitution provides for justiciable socio-economic rights. Unfortunately legislative rights alone have proved insufficient and all too frequently the constitutional values and aspirations of human dignity and equality have had a ‘hollow ring’. The most obvious reason for this failure of delivery on the part of the government is of course a shortage of financial resources. Another reason has been a simple disregard for the terms of legislation and court orders by organs of the state and state employees. The authors are of the view that in order to avoid such a dire result, the courts, given their broadly framed constitutional powers, should be adventurous in crafting means to ensure that their orders are properly implemented and adhered to. This article explores the role that courts can play in ensuring proper implementation of both the terms of social security legislation as well as the implementation of court orders with reference to well-fare judgments in the Eastern-Cape.
 

Limitation of Socio-Economic Rights in the 2010 Kenyan Constitution: A Proposal for the Adoption of a Proportionality Approach in the Judicial Adjudication of Socio-Economic Rights Disputes

On 27 August 2010 Kenya adopted a transformative Constitution with the objective of fighting poverty and inequality as well as improving the standards of living of all people in Kenya. One of the mechanisms in the 2010 Constitution aimed at achieving this egalitarian transformation is the entrenchment of justiciable socio-economic rights (SERs), an integral part of the Bill of Rights. The entrenched SERs require the State to put in place a legislative, policy and programmatic framework to enhance the realisation of its constitutional obligations to respect, protect and fulfill these rights for all Kenyans. These SER obligations, just like any other fundamental human rights obligations, are, however, not absolute and are subject to legitimate limitation by the State. Two approaches have been used in international and comparative national law jurisprudence to limit SERs: the proportionality approach, using a general limitation clause that has found application in international and regional jurisprudence on the one hand; and the reasonableness approach, using internal limitations contained in the standard of progressive realisation, an approach that has found application in the SER jurisprudence of the South African Courts, on the other hand. This article proposes that if the entrenched SERs are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of SER disputes. This proposal is based on the reasoning that for the entrenched SERs to have a substantive positive impact on the lives of the Kenyan people, any measure by the government aimed at their limitation must be subjected to strict scrutiny by the courts, a form of scrutiny that can be achieved only by using the proportionality standard entrenched in the article 24 general limitation clause.

A feminist response to the food crisis in contemporary South Africa

abstractWomen’s responses to the food crisis in contemporary South Africa raise important questions for feminism. The realisation of the ’right to sufficient food’ enshrined in the post-apartheid constitution is central to achieving an active, gendered citizenship. However grassroots mobilisation is necessary to give such justiciable socio-economic rights substantive content. As part of that struggle women are driving alternatives to the neo-liberal food regime, developing different forms of power, new forms of organisation and counter narratives of ‘food justice’ and ‘food sovereignty’. However they are generally not doing so in the name of ‘feminism’ although women’s involvement in food production, procurement and preparation is a fundamental feminist issue. The article explores why this is the case and concludes by asking whether a ‘transformative feminism’ could emerge and give strength and coherence to these anti-hegemonic struggles to realise the ‘right to sufficient food’ and simultaneously lead to the re-energising of feminist politics.

Justiciability of Socio-economic Rights in Tanzania

Socio-economic rights have been broadly defined to include the right to work, the right to social security, the right to family life, the right to an adequate standard of living, the right to health and the right to free education. The right to work embraces every person’s right to have access to work and that work should be under just and favourable conditions leading to decent work and the worker’s right to form and join trade unions. The right to family life encompasses protection of children and provision of paid parental leave, while the right to health embraces highest attainable standard of both physical and mental health. Further, the right to adequate standard of living include the right to food, water, housing, clothing and continuous improvement of people’s living conditions, whereas the right to education hinges on free universal primary education, availability of secondary education and accessible, higher education. As far as the right to social security is concerned, it envisages provision of social security benefits. Social security encompasses measures aimed at guaranteeing an individual or group, on a contributory or non-contributory basis, protection against unforeseeable risks. Social security is composed of

In the face of judicial deference: Taking the “minimum core” of socio-economic rights to the local government sphere

The Constitution of the Republic of South Africa, 1996 (the Constitution) is transformative as it is committed to correcting the injustices of the country's past and to establishing a society based on democratic values, social justice and human rights. The Bill of Rights in the Constitution guarantees a variety of human rights as one of the mechanisms for realising the transformative objectives of the Constitution. These guarantees include traditional civil liberties as well as justiciable socio-economic rights. The latter seek to secure a basic quality of life for all members of society and afford entitlements to the material conditions required for human welfare. They include the rights of access to housing, healthcare services (including reproductive health care), sufficient food and water, social security and social assistance, further education, land on an equitable basis, and an environment that is not harmful to health and wellbeing.

The Place of the “Minimum Core Approach” in the Realisation of the Entrenched Socio-Economic Rights in the 2010 Kenyan Constitution

AbstractThe high levels of poverty, inequality and socio-economic marginalisation that bedevilled Kenya for generations led to a struggle for a new constitutional dispensation, which culminated in the promulgation of a new, egalitarian and transformative constitution in August 2010. This constitution entrenched justiciable socio-economic rights within an elaborate Bill of Rights. Though an important step in the process of the egalitarian transformation of the country, the challenge remains to transform these precepts into practice with their scrupulous implementation through legislative, policy and programmatic frameworks, as well as judicial decision-making. This article argues that, in order to achieve the intended egalitarian transformation, Kenya must adopt a strong interpretive approach, with sufficient foundational standards for the translation of these rights into tangible realities for Kenyans. Kenya must therefore explicitly adopt a minimum core approach for the realisation of these rights to transform them into practical realities for the poor, vulnerable and marginalised Kenyans.

A NEW ‘RAY OF LIGHT’ IN SOCIO-ECONOMIC RIGHTS JURISPRUDENCE? A NOTE ON COUGHLAN NO V ROAD ACCIDENT FUND (CENTRE FOR CHILD LAW AMICUS CURIAE) (CCT160/14) [2015] ZACC 9

The justiciability of socio-economic rights in the South African courts has been the subject of much academic debate. This issue of justiciability spans back to the drafting of the final Constitution — the question at the time concerned whether or not these rights should be included in Chapter II of the Constitution. The fact that the justiciability of socio-economic rights has been an on-going concern for the last two decades illuminates the difficulties faced by the courts in giving substantive content to these rights. The courts often respond to these situations by way of deference.1 Brand defines deference as ‘a strategy of the courts, when faced with difficult, technical or contested social questions…to leave the decision of those issues in different ways and to varying degrees, to the other branches of government.’2 The judgment of Coughlan NO v Road Accident Fund (Centre for Child Law Amicus Curiae) (CCT160/14) [2015] ZACC 9 is arguably described as a ray of light amongst the dark clouds that normally shroud socio-economic rights jurisprudence.

Are Socio-Economic Rights a Form of Political Rights?

This article focuses on a particular problem in South Africa – and that has arisen in many developing democracies around the world – concerning the frequent failures of representative institutions adequately to represent and address the interests of the poor. It explores some of the underlying reasons that have been advanced to explain this phenomenon. The article then focuses on the recognition of fully justiciable socioeconomic rights in many modern constitutions and contends that part of their raison d’etre is to offer one means of correcting the flaw in representative democracy that leads to the under-representation of the interests of the poor. The article then seeks to illustrate the political dimension of socio-economic rights through an analysis of some of the case law on the subject in South Africa. It concludes by reflecting on the manner in which, at least partially, socio-economic rights can be seen as a species of political rights and how this contributes further to breaking down the division between different classes of rights.

The Justiciability of Socioeconomic Rights, European Solidarity, and the Role of the Court of Justice of the EU

What role does the CJEU play in the promotion/demotion of European solidarity? In this paper I want to suggest that the CJEU can play a benign, solidarity-enhancing role through the development of new, democratic-experimentalist forms of judicial review.