South Africa and Human Rights
Albie Sachs considers whether the obligation on the state to promote socio-economic advance should be made a constitutional duty. He comments that where the struggle for survival is overwhelming, the freedom to vote and the right to criticise the government risk becoming devoid of practical meaning. Individual human rights can guarantee to people dying of hunger the inalienable right to use their last breath freely to curse the government. In South Africa, the judicial enforcement of socio-economic rights poses the question of whether social and economic rights can be regarded as fundamental rights enforceable directly by the courts, and if so, how? Sachs tells how a group of black South African students set up an Anti-Bill of Rights Committee. They regarded the Bill of Rights as a document established by the privileged white community to block future moves towards social and economic transformation. Whites owned 87 per cent of South African land and 95 per cent of its productive capital. Property rights guaranteed by the Bill of Rights meant that the poor would remain poor and the rich would get richer. Sachs was detained in solitary confinement for 90 days without charge, trial, or access to lawyers on suspicion that he had information which could help security forces in dealing with anti-state activity. Following the 90 day period, he was immediately detained for another 90 days. Sachs states that the law created a vacuum, a space with a totally extralegal area, with only the conscience or system of command of the authorities to prevent abuse if people were locked up. Basic decisions on guilt or innocence were made by the security police. The exceptional became the normal. Sachs’ practical experience is that, once the door is opened to diminishing respect for the rule of law, the door is closed to the rule of law, to habeas corpus, to standards of interrogation, to the right to a fair trial. The opening or the closing of the door is never enough for the security people.
During the drafting of the South African constitution, a question for discussion was whether social and economic rights, for example the right to health, housing, food and education, should be included as fundamental rights. This discussion centred on whether “bread rights” should be on a par with “freedom rights”. The 1996 Constitution of the Republic of South Africa sets out, in simple and transparent terms, a number of social and economic rights. It has been described as the most progressive Constitution in the world. For example: • Everyone has the right to have access to adequate housing. • Everyone has the right to have access to health care. • The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. This has been considered by the South African Constitutional Court in a number of cases, including the following: • Soobramoney v Minister of Health, KwaZulu Natal (1998). S suffered from chronic renal failure. He complained that the state’s failure to provide him with continued dialysis amounted to a failure to take active measures to protect his right to life under the Constitution. The Constitutional Court decided that there had been no breach of the Constitution because chronic conditions were not to be given the same priority as emergency medical cases. S died. Justice Albie Sachs later commented that access to resources, unlike the right to free speech or to vote, had to be rationed. The queue for resources must be fairly established and non-discriminatory. The Court could not say that S should go to the head of the queue. • Government of the RSA v Grootboom (2001). G and others were squatters on privately owned land. The owner applied to the local authority for their eviction. The Constitutional Court was asked to interpret the sections of the Constitution which guaranteed the right to access to adequate housing and gave children the right to shelter. The Court ruled that the state had an obligation to establish a coherent and coordinated housing programme. This obligation had to be concentrated on people in crisis. Those whose needs were most desperate had a right to emergency relief and shelter. • Minister of Health v Treatment Action Campaign (2002). The South African Health Department refused to generally supply Nevirapine, a drug for treating HIV positive pregnant women. The Constitutional Court ruled that the Health Department was in breach of its obligation under the Constitution to provide access to health care in a reasonable manner and taking account of pressing social needs. The Department was ordered to supply the drug at all public hospitals and clinics.
Crucially important issues like these have not been discussed in the English courts or by the human rights industry. Generally, individual human rights in the UK are individually enforced and protected. The involvement of a number of “celebrity” solicitors and barristers can sometimes be seen to approach a cult of personality. The Human Rights Act is incomplete. It should be amended to include social and economic rights, following the South African model. The protection of human rights, and the enforcement of the 1998 Act, should not be the prerogative of individual lawyers.