Advancing the Constitution through social and economic rights

A Constitution, it is sometmes said, is no more than a piece of paper. Constitutions can be amended or, in extreme cases, can be ignored by the state and other powerful interest groups in society: by big corporations and fat cat capitalists, by tenderpreneurs with political connections, by police officers or members of the military, by the prosecuting authority or by government Ministers.

But this can only happen if the citizens allow it to happen.

Yet, a progressive Constitution can also become a powerful symbolic and practical document that can play a pivotal role in ensuring the establishment of a more fair society in which the legal rules do not always allow the powerful and well connected to trample on the rights and interest of ordinary citizens, a society that genuinely concerns itself with social and economic justice.

As Chief Justice Sandile Ngcobo reminded us this week when he delivered the first Claude Leon Foundation public lecture on Constitutional Governance, an independent judiciary, trusted by the citizens, has a pivotal role to play in safeguarding a Constitution.

[I]t is important to recognise that the independence and impartiality of the judiciary are not private rights of judges.  They are human rights of citizens. … It follows that the public has a powerful interest in effective and just courts.  In particular, the people have an interest in assessing whether courts operate without fear, favour or prejudice, as our Constitution requires, and whether they do so efficiently given the substantial public and private resources that are invested in the judicial system.

When citizens trust the judiciary and has confidence in it, when that judiciary demonstrates that it has not been captured by politicians and that it does not serve merely to protect the private interests of the rich and powerful, it becomes easier for ordinary citizens to defend that judiciary and to insist that it remains independent and impartial.

If ordinary citizens do not trust and hence are not prepared to defend the judiciary, a Constitution can indeed become merely a piece of paper that can be easily ignored, amended or, in extreme cases, suspended to serve the interests of a small elite.

The launch this past week of the Council for the Advancement of the South African Constitution (CASAC) reminds us that one way of advancing constitutional governance and protecting the Constitution is for civil society to take action through words and deeds to demonstrate to citizens why the Constitution matters to all of us – whether we are white or black, rich or poor, ANC members or die-hard DA supporters (even Blue Bull supporters, come to think of it, but that is pushing it slightly).

In a speech at the launch of CASAC at Liliesleaf farm, Dr Sipho Pityana made this point and indicated that CASAC understands that the Constitution can only remain a living document that is revered and that will be protected by an active citizenry if it can be demonstrated to all that the progressive South African constitution, vigilantly enforced by an independent judiciary, can make a difference to the lives of ordinary South Africans. That is why CASAC has decided to prioritise litigation and other actions that would help to enforce social and economic rights.

In a country like South Africa, in which there are vast discrepancies in wealth and circumstance between rich and poor and in which many people might feel that a Constitution is really a document for the rich and well connected that has very little to do with their own lives, social and economic rights litigation can help both to address the immediate needs of the vast majority of citizens and to demonstrate the importance of safeguarding the Constitution against attacks by powerful rightwing forces.

But this kind of litigation cannot be undertaken by one organisation alone.

Other members of civil society, working with lawyers who have a comprehensive knowledge and a deep understanding of the context within which social and economic rights litigation must occur, has an important role to play. At present there are far too many lawyers in South Africa who do not have a sufficiently firm grasp of the challenges and opportunities presented by the social and economic rights provisions in our Bill of Rights.

This is a complex area of our law that requires lawyers to think somewhat differently about the law and about the way in which litigation can be used strategically to make a real difference in the lives of ordinary South Africans.

But help is at hand. One of the founding members of CASAC (full disclosure: I am also one of the founding members of CASAC), Prof Sandy Liebenberg, recently published a magisterial book entitled Socio-economic Rights: adjudicating under a transformative constitution that will surely become the standard work in this field.

For civil society organisers, social movement leaders, lawyers who wish to come to grips with the complex area of the law (and the socio-legal context within which social and economic rights litigation takes place), or for lawyers who have already litigated constitutional cases and need a reference work to assist in the preparation of cases, this book will become indespensible.

This is not a dry textbook that merely describes the various legal developments in the field of social and economic rights litigation. It also provides a comprehensive analysis of the Constitutional Court’s jurisprudence on social and econmic rights and provides suggestions – at the same time practical and conceptually innovative – about how this jurisprudence can be “worked”, how the boundaries of social and economic rights litigation can be expanded, and how such litigation can be used strategically to advance the rights of ordinary citizens.

The Constitutional Court has been critizised by some of us academics because of what we percieve as its timid conceptualisation of the social and economic rights obligations entrenched in the Bill of Rights. Because the Court focuses so strongly on the question of whether the state has acted reasonably in realising the social and economic rights, some have argued that these rights cannot really make a big difference to the lives of ordinary citizens – something that is needed to help legitimise the Constitution.

Prof Liebenberg argues quite convincingly that the existing reasonableness review standard employed by our courts can be given a substantive content – especially in cases where access to housing, health care, water, electricity and food are denied to individuals and one can show that this denial has a discriminatory effect. If one links the social and economic rights arguments to arguments about equality and non-discrimination, what might have appeared as process rights with little real “bite” suddenly become powerful tools that can be used by lawyers to vindicate the rights of the very people whose trust in the Constitution might help to ensure its survival.

The chapter on social and economic rights in the area of private law will also come as an eye opener to lawyers who specialise in property law or contract law and who believe that their area of law has very little to do with  social and economic rights. When some of us talk about the transformative constitutionalism, we also have in mind that the arguments presented here would be used by lawyers and would find favour with judges to ensure that traditional common law rules which often favour the powerful and rich are transformed to make the law more just and fair (a concept that might by scoffed at by more traditional lawyers who do not always wish to think about the link – or disconnection – between law and justice).

So this is a bit of a plug: Anyone interested in our Constitution and what it can do to make South Africa a more fair and just society – even non-lawyers – and any lawyer who wants to get up to speed with the exciting and important aspect of our Constitution, should go out and buy Prof Liebenberg’s book. It will be money well-spent.

• “Socio-Economic Rights: adjudicating under a transformative constitution” is published by Juta.

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