Thickening the Rule of Law in Transition: The Constitutional Entrenchment of Economic and Social Rights in South Africa

Summary

INTRODUCTION

This chapter examines the ability of the South African Constitutional Court to apply economic and social rights (ESR) and whether the constitutionalization of ESR represents a mechanism capable of entrenching a substantive or ‘thick’ conception of the rule of law. After apartheid, South Africa adopted an impressive Constitution which considers international law and justiciable human rights as pillars of the new democracy. The negotiators of the new constitutional framework acknowledged that the decades of economic and social exclusion of a large proportion of South Africa's population had to end if the rule of law was to be established in a meaningful way. A mere retraction of discriminatory laws and an adherence to a formal (‘thin’) notion of the rule of law was viewed as insufficient to break with the abusive past of the apartheid era. Instead, the drafters adopted a ‘thick’ account of the rule of law. The aspiration of this substantive conception of the rule of law is characterized by the commitment to the values enshrined in South Africa's Bill of Rights, including justiciable economic and social rights. The preamble of the 1996 South African Constitution states that the country modified its constitutional framework in order to ‘[h]eal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights.’

The present volume studies the effects of empowering domestic courts to apply international legal principles after countries emerge from conflict or oppressive rule. South Africa is an example of an attempt to empower domestic courts to consider international law. Perhaps even more importantly, South Africa is an example of a domestification of the international rule of law: whereas the previous Constitutions of 1910, 1961, and 1983 had no bill of rights, the drafters of the current, 1996 Constitution made a deliberate effort to harmonize the new Bill of Rights with international law. The reliance on international human rights norms was not confined to civil and political rights, but the 1996 Constitution includes a wide range of justiciable socio-economic rights and adopts language from the International Covenant on Economic, Social and Cultural Rights (ICESCR) and from General Comments of the UN Committee on Economic, Social and Cultural Rights (‘the UN Committee’).