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An appraisal of social rights in contemporary South Africa: Lessons for other developing countries
-- Arun K. Thiruvengadam*
The early years of this new century have witnessed extensive debates about constitution-making and the role of constitutions in ordering societal priorities. Sri Lanka is among several nations that will undergo a “constitutional moment” in the near future, as they design new or revised constitutions to confront pressing social problems and provide guidance for the future ordering of their societies.
This essay focuses on the feasibility of incorporating constitutional provisions which guarantee social rights, and empowering judiciaries to implement these guarantees. Though conventional academic wisdom is sceptical about this issue, courts in several jurisdictions are beginning to push their respective governments to take more proactive steps towards achieving social welfare goals for their citizenry.[1]
In April 2004, South Africa celebrated the tenth anniversary of its first-ever democratic elections, and also conducted its third national elections which saw the return to power of the African National Congress (“ANC”) government with an increased majority in Parliament.[2] A review of developments in the first decade of constitutional governance in South Africa may well provide interesting insights for constitutional reformers in countries which share some of the social and developmental issues that confront South Africa.
The ‘final’ constitution of South Africa, which was adopted in 1996, contains some of the strongest guarantees of social rights provisions in the contemporary world. Since 1998, the South African Constitutional Court has delivered four major judgments interpreting the scope and application of these provisions, and these will be discussed in the course of this essay. In this essay, I seek to focus upon these cases against the larger backdrop of the social and economic policies pursued by the ANC government in its first decade. For the purposes of this essay, I use the term “social rights” to refer to those rights that are considered necessary for the foundations of an adequate quality of life. These would therefore encompass, at a minimum, rights to adequate nutrition, health, housing and education.
When South Africa became a free and democratic society in 1995, its population was deeply ravaged by the effects of nearly four centuries of colonial rule and fifty years of ‘apartheid’, and displayed some of the highest levels of social and economic inequality in the world.[3] Given this background, it should not be surprising that the text of the final South African constitution contains strong social rights provisions.[4] The specific social rights that form the principal focus of this essay are contained in sections 26 (declaring the right to access to adequate housing), 27 (guaranteeing the right to have access to health services, food, water and social security) and 29 (guaranteeing the right to education) of the 1996 Constitution. It is important to note that these rights are not absolute. A standard restrictive clause in several of these provisions is the following: “The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right”.
The South African constitution is perhaps the most progressive constitutional text in the world today.[5] Significantly, it vests tremendous power in unelected judges, who are charged with the task of supervising the attainment of the lofty goals for South African society that are enshrined in its constitution.[6] The idea that a constitutional document should enshrine social rights has many critics. In this essay, I seek to analyse some of these criticisms and use the South African experience to assess the validity and force of such criticisms.
In the first section of this essay, I set out the academic criticisms of constitutionalising social rights, which is followed in the next section by a brief overview of the policies pursued by the ANC government in its first decade and their consequential effect on current South African social and economic realities. Against this backdrop, in section three of this essay, I focus upon the four social rights cases decided by the South African Constitutional Court, and analyse whether the criticisms enumerated in the first section are well-founded. The fifth and last section outlines some tentative predictions about the future of social rights jurisprudence in South Africa, and seeks to draw some conclusions that may be applicable in other developing nations.
1. Early criticism of the South African constitutional order and its incorporation of social rights provisions:
While the provisions of the South African constitution and its Bill of Rights in particular have received widespread praise, they have also attracted criticism from some quarters. A prominent critic has been Makau wa Mutua, a Kenyan-born human rights scholar now based in the United States. Reviewing the constitutional provisions in the new South African constitution and their impact a full two years after the adoption of the new constitution, Mutua argued that while it made sense for the ANC to use the “rhetoric of rights discourse” in its struggle against apartheid, the new constitution’s “total dependence on rights discourse” was misguided. In his elaborate analysis, Mutua cited detailed statistics that demonstrated how desperately bleak the social circumstances of black Africans were in the early 1990s, and argued that several aspects of the new South African constitution would tie the hands of the government as it attempted to bring about real change. He argued that the “rhetoric of rights” was a double-edged sword, and can and has been used by the powerful and the wealthy in South Africa to maintain the status quo. Mutua argued that the new South African state should not rely exclusively on rights discourse, but attempt a more multifaceted strategy, relying upon specific measures that would help effect genuine social reform. This would include limiting the property rights of the beneficiaries of apartheid, and resorting to people-centred conceptions of development.[7]
This is not the appropriate forum to evaluate the criticisms that Mutua and other Third World scholars have laid at the doorstep of the movement for rights that has been promoted by various actors at the global level. Given that several prominent social activists and movements from the Third World have also adopted the “rhetoric of rights” that Mutua and others are critical of, the debate over this issue promises to be contentious. As far as South Africa is concerned, however, many commentators have pointed out that since the ANC had agitated over nearly its entire existence for a Bill of Rights for black South Africans, its support for a rights-based framework of governance was virtually a foregone conclusion.
There are other critics who, while advocating for a Bill of Rights in general, believe that social rights provisions, which require positive governmental action, have no place within them. These critics question the legitimacy of empowering the judiciary to overrule the popular will as expressed through legislative activity. They also question the institutional capacity of the judiciary to adjudicate upon social rights issues. This argument, in its overall form, is that social rights are problematic because: they are positive rights and require governmental action; are resource-intensive and are therefore expensive to protect; are progressive and therefore require time for realization; are vague in terms of the obligations they mandate; and involve complex, polycentric and diffuse interests in collective goods. The critics contend that all these attributes make issues concerning social rights particularly unsuitable for resolution through judicial for a, which are designed to handle disputes on a case-by-case basis, and cannot tackle large-scale problems.[8]
In a subsequent section, I describe the four judgements delivered by the South African Constitutional Court and attempt to evaluate whether these criticisms have turned out to be well founded. However, before dealing with the cases, it is important to get a sense of the governmental policies that formed the backdrop of (and in some cases were the direct cause for) the court cases.
2. Brief overview of the ANC government’s economic policies (1994-2004)
When the ANC government took over the reins of power in 1994, it was generally expected to adopt socialist policies on social and economic issues. In practice, however, the ANC government has aggressively implemented neo-liberal reforms, and has pursued economic polices that are geared to making the South African economy conducive to free market forces.[9] As a result of these new economic policies, the South African economy is considered amongst the strongest in the region.[10]
It appears that at a relatively early stage, the ANC government decided to orient its policies towards making the South African economy hospitable for foreign investment, while simultaneously avoiding policies that would cause whites, who dominate South Africa’s business and industrial houses, to “take flight”. So, far from pursuing policies of aggressive land reform (as suggested by Mutua and other scholars), the ANC government has conspicuously avoided pursuing radical policies of redistribution of land.[11]
The results of pursuing such policies are now becoming clear. Earlier this year, in May 2004, the United Nations Development Programme (UNDP) released its 2003 Human Development Report for South Africa which contains a review of social development policies over the first decade of democratic rule in South Africa. While the Report takes note of several progressive policies adopted by the ANC government towards improving the socio-economic conditions of its populace, its overall prognosis is grim, indicating that the socio-economic situation has actually worsened in recent years.[12] The UNDP report acknowledges that several of these problems are a direct consequence of policies adopted prior to the coming to power of the ANC government. However, it also places blame squarely at the door of the ANC’s policies, and categorically notes that the market-friendly policies being pursued by the ANC are exacerbating the socio-economic problems in present day South Africa.[13]
3. The South African social rights cases
By any standards, and particularly when compared to other judicial institutions, South Africa’s Constitutional Court is a remarkable institution. The Constitutional Court was conceived with great care and attention, and the first members of the Court had impeccable credentials as several of them had played important roles in the struggle against apartheid. Among several other unique characteristics of this institution is the fact that it was charged with approving the text of the final constitution, and was therefore instrumental in the ushering in of a new constitutional order in South Africa.[14] Among its first decisions was a highly charged case where, in the face of massive public opinion in favour of retaining the death penalty, the Constitutional Court held that the administration of the death penalty in South Africa was unconstitutional.[15] In a very short period of time, the Constitutional Court has quickly established itself as an important actor on the South African socio-political scene, and has shown that in fulfilling the important mandate that it has been charged with by the constitutional text, it will not hesitate to take on powerful forces in South African society.[16]
If there is one area where the Constitutional Court has been overly circumspect in discharging its constitutional mandate, it is in cases involving social rights. This is surprising, since we have already noted that the constitutional text appears to vest wide powers in the Court with respect to social rights.
What follows is a brief review of each of the four cases that the Court has had to decide until April 2004. The first case involving social rights came before the Court in 1998. Soobramoney v. Minister of Health (KwaZulu)[17] was a case brought by a terminally ill diabetic patient who had been denied dialysis treatment by a public hospital. The hospital, which had many demands on its limited dialysis machines, had enunciated a policy where terminally ill patients were given less priority than those who had greater chances of surviving. Mr. Soobramoney challenged the hospital’s policy before the Constitutional Court arguing that his right to health and emergency medical treatment (both of which are guaranteed under the South African constitution) had been violated. The Court reviewed the policy of the hospital and held that the determination of the appropriate policy lay with the hospital authorities. Since the hospital authorities had acted in good faith, the Court refused to interfere with a decision which was made in the context of scarce resources. The Court noted that if it ordered relief for Mr. Soobramoney, it would have to do so for all persons situated similarly, and doing so for all patients claiming expensive medical drugs and treatment would cause a dramatic increase in the health budget to the detriment of other needs that the State is required to meet.
Shortly after Mr. Soobramoney’s plea was rejected by the Constitutional Court, he died, and the judgment attracted a torrent of criticism. One critic termed the approach adopted by the Court as “utilitarian” and argued that in a rights context, a utilitarian approach is deeply problematic as it is premised on a presumption of fixed and limited resources. Others were critical of the Court’s cautious approach, and contended that by not mandating relief even in a case as extreme as that of Mr. Soobramoney, the Court was abdicating its duty to implement the social rights provisions.
The second case to raise the issue of social rights was Government of the Republic of South Africa v. Grootboom, which was decided in 2000.[18] The persons who brought this case before the Constitutional Court were a group of about 900 squatters, all of whom had applied for low cost housing to their local municipality. Having been unsuccessful in securing housing even after waiting for several years, they encroached upon privately owned but vacant land, and put up temporary shelters. The governmental authorities forcibly evicted them from the privately owned land. The squatters moved court alleging that their right to housing, guaranteed under Section 26 of the Constitution, had been violated. The Court was faced with an unenviable situation. On the one hand, it had to confront the enormity of the problem of homelessness in South Africa where hundreds of thousands of people live without access to proper housing. On the other hand, the Court was presented with real evidence of the government’s genuine commitment to addressing the problem. The Court could well have followed its approach in Soobramoney and refused to interfere with “rational decisions made taken in good faith by the political organs”. However, it appears that the criticism that the Soobramoney case generated had an effect on the judges of the Constitutional Court. Ultimately, the Court adopted a novel approach, which was a great improvement on the deferential approach it followed in Soobramoney. The Court acknowledged that the government’s housing policies were a step in the right direction. However, it noted that the government had not made any allowance for the most desperately situated homeless persons within its overall housing policy. To that extent, the policy of the government was “unreasonable” and therefore unconstitutional. The Court directed that the government take immediate steps to remedy this problem by making provisions for the persons whose housing situation was the most desperate. However, the Court continued to be very cautious in its approach, and rejected arguments designed to impose a “minimum core” obligation on government towards fulfilling the social rights of citizens. It also did not issue any directions of a supervisory nature, to ensure that its order was actually complied with.
What is interesting about the change in approach in Grootboom is that if the Court had applied the same yardstick of forcing the government to “make allowance for the most desperately situated persons” to the facts of the Soobramoney case, it could have justified mandating relief that would have saved Mr. Soobramoney’s life.
In 2002, the Constitutional Court was required to grapple with one of the most pressing issues in South Africa today – the HIV/AIDS pandemic. In Minister of Health v. Treatment Action Campaign (TAC)[19], the issue before the court was the refusal of the South African government to provide an anti-retroviral drug that would prevent mother-to-child transmission of AIDS in public hospitals. The action was brought before the Court by an AIDS activist organisation, and the government’s response was to argue that by its very nature, the issue was one that was incapable of being resolved by judicial action. The ANC government argued that the doctrine of separation of powers mandated that the Court refuse to intervene in the issue, and leave it to the government to formulate an appropriate policy. Unlike the Grootboom case, there were very few facts to show that the government had actually enunciated a good faith policy to tackle the problem at hand. On the contrary, both the President and the Health Minister of South Africa had made remarks which indicated a puzzling resistance on the part of the South African government to recognise the serious implications that the AIDS crisis has for the future of South Africa. Though this is not articulated in the text of the judgment issued by it, it is clear that this reality had some influence on the final ruling of the Court. The Court held that the governmental policy of refusing to provide the drug to mothers in public hospital was unreasonable and unconstitutional. It also asserted its own power to intervene and strike down governmental policy that violated the mandate of the constitutional text in respect of social rights. However, having done that, the Court refused to subject the government to any supervision for the implementation of its order.
On March 4, 2004, the Constitutional Court delivered its fourth major judgment on social rights. In Khosa v. Minister of Social Development[20] the issue before the Court concerned citizens of other nations who had migrated to South Africa (often because they were fleeing from dire circumstances) and had acquired permanent residence status, but had not acquired South African citizenship. These persons had gone to court because the South African government was attempting to prevent them from claiming social security grants by making citizenship a pre-requisite for qualifying for social security. The South African government opposed the claim on the ground that it would impose considerable financial hardship and also affect the provision of other social services. The government also argued that even developed nations had required citizenship as a qualification for social security benefits. The Constitutional Court analysed the textual provisions which mandated provision of social security benefits (section 27 c) and concluded that since that provision referred to “everyone” rather than “citizens”, its purposive interpretation required that non-citizens be extended the benefit as well. The Court also analysed the financial implications and concluded that the government would have to bear the increased cost.
These four decisions of the Court have attracted considerable criticism from social activists and progressive academics who argue that the Court did not go far enough in adhering to the constitutional mandate in respect of social rights. They argue that the Court has been too deferential to government and has adopted interpretive strategies that are designed to give too much discretion to government in implementing social rights. They have also criticised the Court for not focusing on the remedies it has issued in these cases, which has resulted in at least two of these decisions being either ignored or under-implemented (the reference is to the Grootboom and TAC cases).[21]
I agree that the Court has been excessively circumspect in exercising its wide powers of jurisdiction in respect of social rights, and is also guilty of not paying enough attention to the all-important question of the remedies that should designed in complex social rights cases. Having said that, my own view is that that the Constitutional Court has actually made incremental positive changes in each of the cases it has decided so far. The Court has come a long way from its position in 1998, where it refused to admit Mr. Soobramoney’s claim. We now have a situation in 2004 where the Court expressly rejected the government’s argument of “financial hardship” and compelled it to provide financial redress in Khosa. It is therefore clear that the Court is now prepared to direct that specific financial allocation be made for issues and problems that, according to its interpretation, fall within the constitutional mandates in respect of social rights. The Soobramoney case reflected an unwillingness to go that far, but it is now apparent that the Court no longer feels so restrained.
One possible interpretation of these cases is that the Court wanted to give the new ANC regime a decent opportunity to orient its socio-economic policies, and after nearly a decade, when it finds that the government’s programs are not measuring up, it is beginning to act. Some South African commentators have noted that the judgments issued in the social rights cases have alerted the South African government to the fact that their policies will be called into question in court, and government officials will have to be prepared to defend the details of such policies. This has a salutary effect on the government’s approach to policy-making, and forces the government to be rigorous in conducting the background research, and in providing hard date to back up its claims. The Constitutional Court is thus helping to foster a spirit of greater accountability in a government which enjoys a huge majority in Parliament and might ordinarily have been allowed a great deal of latitude.
The Constitutional Court is also acutely aware that attainment of social rights is an area where historically, no Court in the world has been able to accomplish meaningful goals by acting alone. Courts can, at best, be partners (and not leading ones at that) in any process that seeks to achieve social rights for large sections of people in a nation. There is growing evidence, however, that courts in several jurisdictions are beginning to push their respective governments to take more proactive steps towards achieving welfare goals for their citizenry. All these cases put together constitute a sizable body of data to disprove the apprehensions expressed by academic critics of the constitutionalisation of social rights.
The challenge for the Constitutional Court in the next decade will be to find creative ways by which it can help partner the attainment of the constitutionally mandated social welfare goals.
4. Conclusion:
The 2003 UNDP Report is a damning critique of the policies of governance being pursued by the ANC government. One must remember, however, that shortly before the Report was released, the South African people returned the ANC government to power with the largest majority it has gained so far, giving it a two-thirds majority in the South African Parliament.
Given political realities in South Africa today, the Constitutional Court is one of the few institutions that can provide some kind of counterbalance to the strong executive in South Africa. I would argue that the Court’s cautionary approach in social rights cases may have been justified so far, but it must move towards adopting a more expansive approach, and push the South African government to provide social rights to the vast sections of its populace that lack access to basic amenities. In doing so, the Court must pay particular attention to the remedies it fashions in cases involving social rights. In this respect, it may look to the experiences of the Indian Supreme Court. Starting from the late 1970s, the Indian Supreme Court began to take on cases involving the poor and disadvantaged sections of society. Its initial enthusiasm was not backed by strong remedial orders and many of those initial orders were not actually implemented in their terms. However, over time, the Indian Supreme Court has focused on remedies and fashioned several innovative strategies which are designed to implement complex programmes that help in securing social rights. Though there is yet a huge gap between the orders issued by the Court and actual implementation of those orders at the grassroots, impressive achievements have been made on specific issues.[22]
What is heartening is that there is in South Africa today, a range of increasingly well-organised grassroots initiatives that are actively mobilising people to influence governmental policy in specific areas.[23] One such group is the Treatment Action Campaign which was instrumental in taking up the AIDS anti-retroviral drug case before the Constitutional Court. One would expect that in the years to come, these social movements would put pressure on the ANC government to focus on social development programmes. In appropriate cases (like in the TAC case), the social movements will move court against the government. On such occasions, the Constitutional Court must act in coordination with the social movements to move governmental policies along a path that ensures that the social rights provisions will be fulfilled. Given the enormity of problems confronting the South African state as a whole, it will take a concerted effort between government, the courts, and social movements to deliver to the people of South Africa the promise of their constitutionally guaranteed social rights.
The South African experience has many lessons to offer to those countries which are considering whether to give formal constitutional form to social rights provisions. Even though the South African experience so far is mixed and cannot be termed an unqualified success, it does indicate that social rights provisions can be used by social movements to hold governments to account for the socio-economic policies that they formulate and implement. In many countries, the executive arms of government maintain a stranglehold on the formulation of economic policy, and do not countenance any efforts to reduce their monopoly over this sector. Experiences around the world show that having democratic elections at regular intervals is not a sufficient strategy to ensure that governmental economic policies serve the interests of the weaker sections of society. Adopting social rights provisions whose implementation can, with the intervention of social movements, be supervised by the judiciary may be one avenue that can be explored to help change that situation. -------------------------------------------------------------------------------- * I would like to thank the editors for their constructive comments which contributed greatly to removing the weaknesses of an earlier draft. I remain solely responsible for any errors of fact or reasoning that persist. [1] In an extensive comparative constitutional review of social rights cases, David Beatty documents how courts in India, Canada, Japan, the United States, Ireland, South Africa, Germany, Hungary, and New Zealand have attempted to deliver social rights to their citizens. David Beatty, The Ultimate Rule of Law, ch 4, pp. 119-158 (Oxford University Press, 2004). [2] See, ANC Firmly in Charge as South Africa Opens New Parliament, April 24, 2004, New York Times, p. A9. [3] In 1995, South Africa’s population, totalling nearly 41.46 million, had one of the highest levels of economic inequality in the world. Of the total population, black South Africans comprised 76%, whites 12.8%, “coloreds” 8.5% and Asians 2.6%. Average annual incomes for black households were about one-seventh of those for white households. Unemployment levels among black South Africans was fifty-percent, and their life-expectancy was eleven years less than for whites. Fifty percent of all black South Africans, but only two percent of white South Africans, lived below the poverty line. By 1992, 87% of all land in South Africa had been acquired by law for the exclusive occupation of, and ownership by, white South Africans. Prior to 1990, the South African state budget allocated and spent eleven times more money on each white pupil than on each black pupil. Similar figures prevailed in virtually every social sector, and resulted in a deeply segregated and divided nation where the white population enjoyed a standard of life equivalent to that in developed nations, whereas the standard of living of the black population was comparable to those prevailing in the most underdeveloped nations. The figures and statistics quoted here were obtained from the following two sources: Encylopaedia Brittanica, 1996 Britannica Book of the Year (1996) p. 716; and United Nations High Commissioner for Human Rights, Center for Human Rights, Programme of Technical Cooperation in the Field of Human Rights, Report of the Needs Assessment Mission to South Africa (6-25 May 1996), pp 51-54. [4] It should be noted, however, that the presence of social rights in the text of the final Constitution was not an automatic choice. When negotiations for a new constitutional order began, there was a strident debate about whether the new Constitution should contain guarantees in respect of social rights. Even progressive activists and academics believed that including judicially enforceable social rights provisions in the text of the Constitution was not advisable. This aversion to giving the judiciary an important role is perfectly understandable given the history of apartheid, where judges - and the judicial organ in general - were active collaborators and implementers of various policies of apartheid. During the debates about the future constitution, a number of theoretical objections about social rights were also raised. These objections covered the gamut of well-rehearsed objections to social rights, and ranged from arguments about the conceptual distinction between negative and positive rights, to doubts about the institutional capacity of a judiciary to enforce social rights, to the negative effects upon the democratic process of incorporating social rights. For a sampling of the literature on this debate, see the collection of articles focusing on the appropriateness of incorporating social rights guarantees for South Africa in 8 South African Journal on Human Rights pp. 451-555 (1992). [5] The South African Constitution seeks to achieve a high level of equality, and is the first constitution in the world to expressly outlaw discrimination on the basis of sexual orientation. It includes rights which promote multi-culturalism, and entrenches the right to workers to strike and to organise collectively. It seeks to apply constitutional provisions not just against the state and its agencies, but also against private actors. [6] This vesting of faith and power in an institution that most black South Africans have little historical reason to view favourably (in view of the pivotal role played by law and legal actors in enforcing the system of apartheid) is indeed striking. For an insightful analysis of this intriguing paradox by a leading South African academic, see Alfred Cockrell, The South African Bill of Rights and the ‘Duck/Rabbit, 60 Modern Law Review, pp. 513-537 (1997). The article also charts the progress of the South African Bill of Rights over time. [7] Makau wa Mutua, Hope and Despair for a New South Africa: The Limits of Rights Discourse, 10 Harvard Human Rights Journal p. 63 (1997). Mutua’s argument is based on a larger critique of the international human rights movement which argues that enshrining property rights and certain other human rights in constitutional documents protects existing social arrangements and impedes real social reform, especially in societies such as present day South Africa that face massive problems of inequality of wealth and severe poverty. In later years, Mutua has built on the themes expressed in this article, and in collaboration with the work of other “Third World scholars”, has attacked the genesis, motivating logic and structure of existing international human rights law. See generally, Makau Mutua, Savages, Victims and Saviors: The Metaphor of Human Rights, 42 Harvard International Law Journal p. 201 (2001). [8] For an overview and extensive analysis of arguments against the constitutionalization of social rights, see generally, Craig Scott & Patrick Macklem, Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution 141 University of Pennsylvania Law Review 1, 29 (1992). [9] Given the ANC’s historical connections with Communist powers, and the explicit social-democratic slant of the newly adopted constitutional text, there was an expectation that the new government would adopt socialist policies. When the ANC government adopted a policy called Reconstruction and Development Policy (RDP) soon after assuming power, these suspicions seemed to have been confirmed. However, within its first five-year term, the government shifted direction in favour of a policy favouring financial austerity and a more minimalist role for the state. The RDP was dropped in favour of a policy called Growth, Employment and Redistribution (GEAR) which was decidedly more market-friendly in its orientation. The GEAR policy is pro-private sector, and favours privatisation of public sector companies. It pursues conservative fiscal and monetary policies to facilitate economic growth, job creation, and accelerated trade liberalization. [10] Currently, the South African rand is a very strong currency internationally. South African corporations are proving to be competitive globally and dominate the world’s right-hand driven automobiles. South Africa’s inflation rate is the lowest in 44 years. South African companies have displaced their European and American counterparts as the top investors in Africa. And, business analysts consider South Africa’s fiscal management to be “exemplary”, its public finances to be “in good shape” and its economic situation to be “stable.” See, Zakes Mda, The Half-Revolution, April 24, 2004, New York Times, p. A25. [11] In 1994, ANC leaders pledged to use the treasury and the law to transfer 30 percent of white-owned farmland to non-whites in five years. Ten years later, the government has transferred only 2 percent of the land. In South Africa today, more than 9 out of every 10 acres of commercial farmland remains in the hands of 50,000 white farmers. See, Sharon LaFraniere & Michael Wines, Africa Quandary: Whites’ Land vs. the Landlessness of Blacks, January 6, 2004, New York Times. [12] It records that South Africa’s Human Development Index has worsened (from 0.73 in 1994 to 0.67 in 2003), poverty still engulfs 48.5% of the population (21.9 million in 2002), income inequality has increased (from 0.60 in 1995 to 0.63 in 2001), the majority of households have limited access to basic services, and the official unemployment rate has sharply increased to more than 30% in 2003 (in 1996, the unemployment rate was 19.3%). [13] The UNDP Report notes that “the low responsiveness of employment to investment and economic growth have been the consequence of various built-in policy biases in favour of capital-intensive methods of production, which has resulted in a distorted comparative advantage in the international trade of capital-intensive goods.”The full text of the UNDP Report, complete with a helpful Press Note and a longer summary of the UNDP’s 2003 report on Human Development in South Africa is available online at: http://www.undp.org.za/NHDR2003.htm. [14] In addition, the Constitutional Court is the final arbiter of constitutional disputes in South Africa, and has the power to strike down all forms of governmental action. [15] State v. Makwanyane, 1995 (3) SA 391 (CC). In several other decisions, the Court has aggressively interpreted constitutional provisions to uphold rights of the criminally accused in South Africa, once again attracting the ire of various sections of society which hold very conservative views on criminal justice issues. It has also delivered landmark decisions in areas such as discrimination against gays and lesbians, women’s rights etc. [16] For an overview of the circumstances leading to the creation of this unique institution, and for an analysis of its early history, see Heinz Klug, Constituting Democracy (Cambridge, 2000). [17] 1998 (1) SA 765 (CC). The full text of the judgment delivered by the Constitutional Court in this case, as well as in other cases discussed in this essay, is available at: www.concourt.gov.za. [18] 2000 (11) BCLR 1169 (CC). [19] 2002 (10) BCLR 1033 (CC). [20] Case No. CCT13/03, available at http://www.concourt.gov.za/judgment.php?case_id=12598 [21] See generally, David Bilchitz, Towards a Reasonable approach to the minimum core, 19 South African Journal on Human Rights p.1 (2003); Sandra Liebenberg, Violations of Socio-economic Rights: The Role of the South African Human Rights Commission, in The Post Apartheid Constitutions p. 405 (Penelope Andrews et al, eds.) (2001); and Dennis Davis, Socio-economic rights in South Africa: The Record after Ten Years (Unpublished April 2004 draft, on file with author). [22] S. Muralidhar, Implementation of Court Orders in the Area of Economic, Social and Cultural Rights: An Overview of the Experience of the Indian Judiciary, Paper presented at the First South Asian Regional Judicial Colloquium on Access to Justice, 4-5 (2002) (Unpublished paper on file with author). [23] J.S. Saul, Starting from Scratch? A Reply to Jeremy Cronin, 54(7) Monthly Review p. 28 (2002).
Arun K. Thiruvengadam is J.S.D. (Doctoral) Candidate and Fellow,
Global Public Service Law Project, New York University School of Law.
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