Strengthening the Legal Status of Economic, Social and Cultural Rights in the Constitution and National Legal System: Possibilities and Challenges An Overview of the South African Experience By: Lilian Chenwi Disampaikan dalam Seminar dan Lokakarya Nasional “Menuju Perlindungan dan Pemantauan yang Efektif Hak-hak Ekonomi, Sosial dan Budaya di Indonesia,” diselenggarakan oleh PUSHAM UII, bekerjasama dengan Noewegian Centre for Human Rights (NCHR) Universitas Oslo Norwegia April 2007.

Introduction The justiciability debate The justiciability debate  Justiciability as opposed to enforcement  Not universally-accepted fundamental rights  Inclusion inconsistent with the doctrine of separation of powers The Constitutional Court’s response The Constitutional Court’s response  Civil & political rights as well have budgetary implications  SERs are, to some extent, justiciable – courts can and at least sometimes will, provide a remedy for SERs violations Inclusion of socio-economic rights in the Constitution and accompanying obligations Inclusion of socio-economic rights in the Constitution and accompanying obligations

SERs in the Constitution Environmental rights Environmental rights Land rights Land rights Right to have access to housing Right to have access to housing Rights to have access to health care, food, water and social security and assistance Rights to have access to health care, food, water and social security and assistance Right to basic and further education Right to basic and further education  Including adult basic education Children’s socio-economic rights Children’s socio-economic rights  Basic nutrition, shelter, basic health care & social services Socio-economic rights of detained persons Socio-economic rights of detained persons  Provision at state expense of adequate accommodation, nutrition, reading material & medical treatment

Groups of SERs in the Constitution Qualified SERs Qualified SERs  Formulated as ‘access’ rights Basic SERs Basic SERs  Not explicitly subject to qualifications of reasonableness, available resources or progressive realisation Prohibitions of certain forms of conduct as distinct from rights to particular things Prohibitions of certain forms of conduct as distinct from rights to particular things

Other relevant constitutional provisions Obligations of state – respect, protect, promote and fulfil Obligations of state – respect, protect, promote and fulfil International and foreign law International and foreign law Right to equality Right to equality  Khosa case Right to life Right to life  Soobramoney case Right to administrative justice Right to administrative justice

Mechanisms for the enforcement of SERs Through legislation Through legislation Through executive and administrative action Through executive and administrative action  Kyalami Ridge case Through the courts Through the courts Soft measures of enforcement - SAHRC Soft measures of enforcement - SAHRC

Specific SERs cases Education rights Education rights  Mutukane case – accessibility to education based on the principle of non- discrimination  Discrimination on the basis of race Housing rights Housing rights Health rights Health rights

Right to adequate housing Grootboom case Grootboom case  Right to have access to adequate housing of those faced with evictions Positive indications Positive indications  Contribution to the development of the jurisprudence on the nature of the state’s obligation to progressively realise SERs  Support of justiciability and enforceability of SERs even in resource-constraints situations  Use of international law  Important role of courts in enforcing SERs  Advancement of what the right entails  Gave rise to the adoption of an Emergency housing programme

Housing cont. PE Municipality case PE Municipality case  Right to have access to adequate housing of those faced with evictions Positive indications Positive indications  Consistency with international law  Strikes a balance between a land owner’s right to evict unlawful occupiers and the occupiers’ right to have access to adequate housing - Modderklip case also strikes this balance - Modderklip case also strikes this balance

Right to have access to health care services Soobramoney case Soobramoney case  Right to receive emergency medical treatment; challenge to the resource rationing policy of a state hospital Positive indications Positive indications  Affirmation of the importance of SERs  Acknowledgement of the interdependence of human rights  Emphasis on equitable distribution of limited resources  Court’s willingness to subject SERs to some form of review especially in cases of irrational policies form of review especially in cases of irrational policies

Health care cont. TAC case TAC case  Challenge to government policy on the prevention of mother-to-child transmission of HIV as inconsistent with the right to have access to health care services Positive indications Positive indications  Affirmation of justiciability of SERs.  Shows that courts can make orders with, though limited, financial implications.  The needs of those in crisis situation and in desperate need cannot be ignored in favour of long term strategies to realise SERs.  Effectiveness of a well-planned and multi- faceted human rights strategy in enforcing SERs SERs

Health care cont. EN case EN case  Right of detained persons to adequate medical treatment Positive indications Positive indications  Not all rights of prisoners can be limited  Emphasis on the importance of meeting health care rights and the accompanying obligations  Some form of structural injunction

Challenges Poor policy and programme implementation Poor policy and programme implementation Obligations of government Obligations of government  Confusion as to who should do what and failure to deliver Non-ratification of the ICESCR Non-ratification of the ICESCR Rejection of the minimum core concept Rejection of the minimum core concept Concerns regarding the reasonableness review approach Concerns regarding the reasonableness review approach Slow, inadequate or non-enforcement of court orders Slow, inadequate or non-enforcement of court orders Challenges to monitoring the enforcement of SERs Challenges to monitoring the enforcement of SERs

Concluding remarks Enforcement of SERs is a continuous process of struggle & engagement with diff branches of government & civil society as a whole. Enforcement of SERs is a continuous process of struggle & engagement with diff branches of government & civil society as a whole. Important to employ different strategies to enforcing SERs not just litigation Important to employ different strategies to enforcing SERs not just litigation Key observations Key observations  Importance of political will and the willingness of the judiciary as well as the executive and legislative branches of government, national institutions and civil society to enforce SERs  Appreciation of the inherent character of SERs as human rights.  Litigation, or even the threat of litigation, can force a government to reconsider its policies

Concluding remarks cont.  Doctrine of separation of powers influences judicial enforcement of SERs. However, SA experience shows that courts are not rendered powerless by the doctrine.  It is possible to assess socio-economic rights claims without, at the same time, requiring more than existing resources will allow.  Looking beyond the interest of the individual victims(s) before the court.  ensuring effective implementation of the judgment is often a greater challenge.  Access to information can play a crucial role in realising SERs in realising SERs