Constitutional Court Needs to Rethink Role

Article excerpt

BYLINE: Danwood Mzikenge Chirwa

Throughout human history, human rights have proved to be a temporary triumph for powerless, oppressed, marginalised and vulnerable groups. During long periods of oppression, poor people have always suffered the most.

Ironically, they play a crucial role in the struggles for change which often bring about formal recognition of human rights within a constitutional framework. But once that change takes place, the poor people at the forefront of the battle recede into the backyard, where the fruits of their labour rarely reach.

South Africa seems to follow a familiar historical script. The struggle for freedom was largely sustained by the majority of the poor South Africans, who for a long time felt the full force of the apartheid machinery. Many did not live long enough to reap the fruits of their struggle.

The fight against apartheid was not simply for political freedom. It was also a struggle for greater access to the basic necessities of life that enable a person to live as a human being and take full part in society. It is therefore not surprising that the constitution includes both civil and political rights - which are necessary for an individual to participate in the political and other activities of the government - and socio-economic rights - which guarantee everyone at least the basic requirements of life.

Was this the last major battle to be won by poor people? The value of socio-economic rights has since been diluted. The Constitutional Court has been reluctant to provide a tangible remedy in relation to claims for basic goods and services to be provided to poor people by the state. If poor people in need of medical attention, basic shelter or food succeeds in walking into the Constitutional Court, all they can expect is a judgment pleading with the state to adopt a reasonable policy on the applicable rights.

For all the international attention that this jurisprudence has attracted, it amounts to nothing more than smearing a piece of well-prepared chicken on the lips of a child without letting him bite it, although he has the teeth to do so.

Socio-economic rights have the potential to help poor people offload the yoke of poverty from their necks. But the manner in which these rights have been interpreted by the Constitutional Court means that many poor people will not live to see that happen.

By holding that a person who is deprived of such basic goods as water and housing cannot compel the government to provide him with these, the Constitutional Court has effectively removed all incentives for poor people to bring socio-economic rights claims to court.

Thus, poor people will mostly rely on the goodwill of non-governmental organisations to ensure that the state adopts and implements reasonable programmes on socio-economic rights. This is a task that individual poor people or groups of people cannot accomplish because poverty is often accompanied by lack of proper education, which would enable them to undertake the task of proving the state does not have a reasonable programme.

There is one more significant way in which the Constitutional Court has displayed a stark indifference to the rights of the poor. Despite its weak benchmark for measuring the state's compliance with its obligations, the court has been reluctant to order the government to devise and implement a reasonable programme to realise socio-economic rights within a fixed period under its supervision. …