The role of the judiciary towards enforcement of socio-economic rights in Africa : a lesson from South Africa.

Abstract

In this dissertation I investigated and argued that Socio-economic rights can be justiciable as against the popular view being conceived and proposed against this notion. I argued that this noble project of adjudication and enforceability of socio-economic rights can be readily achieved if the judiciary understands its role in the adjudicative process involving such rights. I further recommended that the judiciary should be more active, pragmatic and innovative when called upon to adjudicate the provisions of socio-economic rights. In the course of my investigation, I related the famous example of how the judiciary in South Africa and India took the bull by the horns and became an enviable example to emulate in the adjudication and enforceability of socio-economic rights. It was the perpetual disfranchisement and the act of relegating socio-economic rights to a non-justiciable right; hence classifying it as secondary, that triggered my interest to embark on this work. As a result of the aforesaid, it became apparent that there is a need to reclaim the status quo of socio-economic rights to enable a meaningful enjoyment and exercise of political and civil rights. Interpretation, adjudication and enforceability of socio-economic rights are some of the most controversial issues amongst the judges, practitioners, scholars and government institutions hence a well carved theoretical solution would be invaluable. In chapter 1, I explored the underlying reason why socio-economic rights ought to be justiciable. In the process, I brought to light the current status quo of these rights amongst nations and the manner in which issues relating to their adjudication have become a non-issue for most of the states. This chapter also justified the reasons why South African and Indian jurisprudence were chosen as case studies in the subsequent chapter. I argued in this chapter that the South African Constitution emerged as one of the first constitutions in the world that, despite criticism, included socio-economic rights in its constitution alongside socio-economic rights as justiciable rights. On the other hand, I highlighted that the Indian judges were very innovative and approached the interpretation of these rights in a manner worth glorifying. As part of the conclusion, I highlighted the literature gaps in the course of my literature review and indicated what the subsequent chapter would entail. Chapter 2 examined the protection of socio-economic rights under the South African Constitution with a comparative analysis under the aegis of human rights law. It examines the status of socio-economic rights under the South African Constitution of 1996 and the historic debates and basis for their inclusion alongside civil and political rights in the Constitution.1 Furthermore, it examined the relevance of this bold step taken by the South African new constitutional order in comparison with other nations who had achieved similar goals by adopting different techniques and methods that aided the process. The last aspect of this topic investigated the different levels of protection enjoyed by socio-economic rights in the context of the American legal regime and other Western world countries while a comparison was also made within the African context. Chapter 3 focused on and investigated the core challenges associated with the justiciability and enforcement of socio-economic rights with a critical analysis on why the judiciary defers. This section focuses mainly on five major problems associated with adjudication and enforceability of socio-economic rights. In summary, these challenges may be categorized as follows: (a) institutional incapacity/capacity; (b) institutional integrity; (c) institutional legitimacy; (d) institutional security; (e) institutional comity and separation of powers influence. The above identified problems were examined in an attempt to ventilate the major problems and/or setbacks faced by the judiciary when called upon to make findings on issues pertaining to socio-economic rights. In so doing, the case of Lindiwe Mazibuko and Others CCT 39/09[2009] ZACC was employed to showcase how these challenges affected the adjudication of socio-economic rights and brief recommendations were made at the end. In chapter 4, I focused on lessons that could be learnt from the adjudication and enforceability of Socio-Economic Rights in South African and Indian Jurisprudence; this was done in view of a comparative exercise. In so doing, I analysed the landmark Constitutional decision of Government of the Republic of South Africa and Others vs. Grootboom 2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC), a case which became the forerunner of all cases dealing with adjudication of socio-economic rights as far as the history of South African jurisprudence relating to social ordering is concerned. A comparison was then made to the Indian jurisprudence and a landmark case of Olga Tellis V. Bombay Municipality Corporation Supreme Court of India was examined in view of learning a lesson from the approach adopted by the judges in adjudicating the provisions of socio-economic rights. In view of the above, India provides one of the best examples in the world alongside South Africa in terms of Justiciability of economic, social and cultural rights. For example, the right to life was interpreted extensively by the Supreme Court of India to include the right to food. The broad analysis of the above was the primary focus of chapter 4. Lastly, chapter 5 wrapped up the dissertation with proposed recommendations and conclusions drawn from the previous chapters. The recommendations were drawn from the lessons learnt from the manner in which the South African and Indian judiciary took a different but related stance towards adjudication and enforceability of socio-economic rights. It was as a result of the these approaches that I recommended for a judicial activism and innovative interpretation of the core contents and application of the provisions of socio-economics rights as opposed to the stance usually adopted by the courts, being judicial deference would go a long way to ensure that the project of justiciability of social rights becomes achievable. Accordingly, I proposed for the theoretical understating of transformative democratic institutions, participatory democracy and representative democracy. In particular, judicial activism and innovative interpretations of socio-economic rights provisions would be the necessary tools needed to aid the enforcement and interpretation of the core contents of socio-economic rights by the judiciary.