Authored By: Wendy Sehlaga
University of Johannesburg
Abstract
This article will look into transformative constitutionalism in South Africa mainly focusing on addressing social issues such as inequality, poverty and socio-economic rights. Transformative Constitutionalism is highlights the constitutional framework that was established in 1996 in South Africa. It enshrines the economic and social justice as foundational values. With the use of primary sources such as the Constitution of the Republic of South Africa, 1996and a case law such as Government of the Republic of South Africa v Grootboom (2000) and Minister of Health v Treatment Action Campaign (2002) and other secondary sources, this article will examine both the weaknesses and the strengths of the Transformative Constitutionalism in South Africa, which emerged post-apartheid era.
Introduction
Transformative Constitutionalism refers to the process of using the constitution or the values which are established by a constitutional framework in order to bring about significant change in social, economic, political and legal changes in the society. This is a legal action that is aiming to cure the mischief of the past and address the historical apartheid injustices. It seeks to promote justice and equality. Transformative Constitutionalism (‘TC’) is an analytical frame to describe and comprehend legally bound social transformation processes. Conceptually, it sits in opposition to preservative constitutionalism. By transformative constitutionalism I mean a long-term project of Constitutional enactment, interpretation and enforcement committed (not in isolation, of course, but in a historical context of conductive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction.
In a country like South Africa that has been historically marked by an unfair and dehumanizing apartheid systemic racial oppression, massive poverty, and inequality. Constitutional Transformation has been put into action. South Africa has history of apartheid which was very unfair and affecting the country politically, socially and economically. The idea of Transformative Constitutionalism in South Africa means using the South African Constitution in order to bring about change in South Africa so that it can be more equal and fair. Transformative constitutional concept was introduced by Karl Klare in his legal article in 1998, “Legal Culture and Transformative Constitutionalism”. The Chief Justice has said in this regard: “the meaning of transformation in juridical terms is as highly contested as it is difficult to formulate”. There is no single fixed definition of what transformative constitutionalism is.
There must, however, be agreement at any rate on some basis for an understanding of transformative constitutionalism. I would suggest that the Epilogue, also known as the Postamble, to the interim Constitution provides that basis. The Epilogue describes the Constitution as providing: “a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of color, race, class, belief or sex”. Transformative constitutionalism is a long-term project of bringing about social change through the interpretation and enactment of the constitution. Because the project envisions transformation not as single occurrence but as a continuous process, it requires a legal culture that is conducive to this change. Methodologically this article adopts a doctrinal and analytical approach examining the legislations, case law, statutes, constitutional provisions and also scholarly literature. Additionally draw on comparative perspectives from foreign and international perspectives and jurisdictions specifically India and Colombia, where the socio-economic rights jurisprudence has informed progressive constitutional enforcement. The objective of this article is to evaluate how the transformative constitutionalism addresses the inequality, poverty and access to socio economic rights within the country. To highlight the failures and achievements in the judicial and legislative response and also to propose reforms in order to strengthen its realization. This article argues that as far as transformative constitutionalism has made notable progress in ensuring the promotion of social justice through the judiciary of the country and legislative measures. However, its impact is limited through the gas and loopholes in implementation and socio-political challenges in the country.
Constitutional and Legislative Framework
The Constitution of the Republic of South Africa, 1996 is a cornerstone of the transformative constitutionalism. The Preamble red with section 1 states values oh human dignity which is (section 10), equality (section 9) and freedom (section 21). Chapter 2 of the Bill of Rights in chapter 2 includes a list of rights such as section 26: right to housing, section 27: right to basic needs such as healthcare, food, water and social security along with section 27: right to education. These provisions are used for the requirement of progressive realization and the available resources which is state in section 26 (2) and section 27 (2) of the Constitution of the Republic of South Africa. They create a crucial balance between the aims of the social justice and the limitations of the state capacity. There is complementary legislation such as the Housing Act, Social Assistance Act and the National Health Act which aid in operating these rights. The Constitution of the Republic of South Africa and the judiciary plays a huge role in ensuring that the socio-economic rights have been met.
Judicial interpretation and Case law
With reference to the Equal Education and Others v Minister of Basic Education , the Gauteng Division, Pretoria court reaffirmed the constitutional obligations of the state to fulfil its duty which was to provide a safe and adequate school resources for the learners specifically basic nutrition. The court ruled that the state had unlawfully breached the rights to basic education enshrined under section 29 (1) (a) of the South African Constitution by not being able to provide meals under the National School Nutrition Programme (NSNP). The High Court in the case found that the Minister of Basic Education and provincial MECs were obligated to provide the learners with daily meals and failure to do so was unconstitutional and inconsistent with the Constitution. In the context of Constitutional transformation, this case set a legal precedent that the state has to play its role within a society. The court’s final judgement reinforced the principle of transformative constitutionalism requiring the state to work towards social justice. Analyzing the use of supervisory interdict emphasizes the court’s role in being impartial and fair by holding the state accountable for its inactions and constitutional duties. The judgment in this case is an example of how the judiciary of the country can actively and continuously enforce positive socio-economic rights. In South Africa it is usually a challenge to practically implement the socio-economic rights that the South African Constitution consists of. Therefore, this case is demonstrating the willingness of the state to act accordingly and go beyond declaring a right and to use the structural interdict to hold the state accountable for its actions. This is to also demonstrate that the state is putting into practice the transformative constitutionalism as the promise of substantive democracy is made a reality through judicial oversight.
In the case of Government of the Republic of South Africa and Others v Grootboom and Others, the Constitutional Court in the case held that the state should fulfill its obligations and ensure that they adopt reasonable measures to progressively realize their right to housing. This case demonstrates that the judiciary is willing to take measures in ensuring that the state’s obligations are fulfilled and established a principle of reasonableness review. In the case of Minister of Health and Others v Treatment Action Campaign and Others , the court ordered the government was ordered without delay to ensure t take reasonable measures in fulfilling its obligations. The Court further ordered the government to ensure that the anti-retroviral drugs are made and available in order to prevent the HIV transmission from the mother to the child, emphasizing that the unreasonable limitations to access to health care is inconsistent with the Constitution of the Republic of South Africa. In the case of Mazibuko v City of Johannesburg the court upheld that the City of Johannesburg’s policy and provision that each person should be allocated 25 liters of free water per day each person is reasonable. It was not inconsistent with the constitutional right to access to sufficient water. The Court found that the Johannesburg city’s approach was promoting the progressive realization of the right was fair. This case affirmed that judicial review is important for economic and social rights.
Through the above discussed South African case law rulings and precedent the judiciary the South African courts are able to develop a way of being able to judge the actions of the government on the grounds of whether they are reasonable or not. Courts can be able to review if the actions of the state re fair in addressing the socio-economic rights. This helps to avoid judicial overreach with the Constitution’s aims of bringing about change and transformation to South Africa.
Achievements and failures of Transformative Constitutionalism in South Africa
The Constitution of the Republic of South Africa guarantees the right to housing (section 26), healthcare (section 27), education (section 29) and further education (section 29). The translation of these rights into the South African reality still remains inconsistent until the present day. Millions of South African residents still remain unemployed as unemployment rate keeps on rising almost every day in the country. While others are facing inadequate housing and do not have full rightful access to the basic services. Although, the reality of South Africa remains inconsistent there are measures taken in order to ensure progress within the country. For example, in South Africa millions of the population are able to get social grants for vulnerable people in which it provides income security which is administered by the South African Social Security Agency (SASSA) on behalf of the Department of Social Development. There is currently expanded access to basic needs such as access to health care and HIV/AIDS treatment. These current achievements showcase the power of the Constitution as a weapon for social justice through transformative constitutionalism. Despite, the achievements transformative constitutionalism faces challenges such as consistent inequality with Gini coefficient above 0.6 within the South African societies. The court rulings are not always implemented effectively due to the existing corruption within the legal systems and bureaucratic efficiency. The resource constrains, sometimes the state does not have sufficient resources to fulfill its obligations.
Comparative perspectives with other countries
South Africa can use other measures that are used on other jurisdictions from other countries to eliminate the transformative constitutionalism challenges. For instance, Colombia uses a legal mechanism called “accion de tutela in order to protect the fundamental human rights in the country. This is procedure that is legal and constitutional which enables the citizens to file a petition with any judge to seek immediate protection or even omissions of the public authorities or private individuals that are infringing or violating their rights. The “tutela” was established in the 1991 Constitution in order to make it easier for justice to be accessed especially in a country where people are limited access to formal legal processes due to their circumstances which can be poverty. The tutela action allows individuals to claim protection of their fundamental rights before any judge. A tutela can take any form- written, oral, formal, informal. The goal is to make it easy for normal people to assert their rights and get protection from the courts. Any court has to accept them, and to decide on whether to grant or deny them within a short time. The Constitutional Court reviews them, and decides which to consider in depth for decisions. If a tutela granted, the person can get an order back to their doctor, insurance provider, school, employer or their party to get them to act in accordance with what the constitution and the court says. India protects the socio-economic rights through the constitutional framework in which it includes the non-justiciable fundamental rights and justiciable Directive Principles of State policy (DPs). The Supreme Court of India plays a huge role in interpreting and also expanding the fundamental rights most especially the right to life and personal libertyto encompass the socio-economic concerns, therefore making many Directive Principles judicially enforceable. This legal system approach used by India enables courts to provide legal remedies and take reasonable measures to realize the rights of the citizens of India. For example, the case of Olga Tellis v Bombay Municipal Corporation it demonstrated how human fundamental rights are protected. These legal systems used by both countries can allow South Africa do develop into a much better country than it is currently. By adopting such legal systems South Africa can be able to have strong and lawful judicial remedies and promote transformative constitutionalism.
Recommendations
South Africa should find a way to strengthen the current existing judicial remedies to maintain a fair and equal democratic society. The judiciary of the country can adopt structural interdicts, legal systems such as one from India and Colombia, and supervisory orders to ensure compliance. Processes and measures that are anti-corruption must be developed and accompany socio-economic reforms. There should be a civil society engagement to ensure that the state is held accountable for its inactions. The recommendations that can be put into practice can be elimination of corruption within the legal systems, learn from other countries that have similar history to South Africa and have used transformative constitutions, highly involve NGOs that are outside the government, apply strict interpretation of the law impartially without biasness.
Conclusion
Transformative Constitutionalism remains the cornerstone to South Africa’s democratic country project. The progress is slowly being made and. However, there are still challenges that the state is currently facing which are bringing limitations and challenges in ensuring that the transformative constitutionalism takes place accordingly. Civil society engagement, judicial activism and highly effective policy implementation is crucial in order to achieve the country’s goals with transformative constitutionalism. The power to make the change is not only vested in the judiciary but also the society in order to make the transformation a reality. South Africa should move beyond its constitutional framework and go beyond to bring about change in the country.
