Open Democracy: Legalizing economic and social rights can help the poor: reflections from South Africa

Stuart Wilson, Open Democracy

The best account of human rights aims to protect and advance all the incidents of freedom, equality and dignity. These include freedom of thought and political action, which are incompatible with torture, arbitrary detention, or censorship. They also include freedoms to realise one’s self, which are impossible without access to the basic elements of a decent existence, such as adequate housing and healthcare, sufficient food, and quality education.

This is what we mean when we say rights are “indivisible”. They cohere around an account of the human personality that acknowledges the inherent dignity of each person; that each person counts for no more or less than any other in the distribution of the means of self-realisation; and that each person is free to pursue his or her own conception of the good, equipped with the basic necessities of life.

This account of human rights requires the recognition of both “civil and political” and “economic and social” rights. Both are essential to developing an individual human personality, in a community of others.

Promoting his currently unpublished work, Jacob Mchangama challenges the efficacy of economic and social rights. Mr. Mchangama says that the adoption of economic and social rights in 75 constitutions in the last 50 years has not led to “robustly positive effects” on long-term social development.  Worse still, there are “strongly negative medium term” effects on education and “detrimental effects of the right to health on child mortality”. Economic and social rights, we are told, actually leave the poor worse off.

Mr. Mchangama goes on to attribute the failure of economic and social rights to the “disruption” they cause. This “disruption” results from unplanned re-allocations of resources to successful rights claimants, away from “the poor”.  He says that the “inherent complexity” of economic and social goods, and the distributive choices that have to be made in providing them, make them ill-suited subjects of rights adjudication.

We are forced to take Mr. Mchangama’s word on the statistical evidence. We can only hope that it passes peer review soon.

Even so, the claims Mr. Mchangama makes for his unseen evidence are remarkable. The suggestion, for example, that economic and social rights might actually cause deeper poverty seems as untenable as blaming the Eighth Amendment of the US Constitution (which prohibits cruel and unusual punishment) for the death penalty. Correlation is not causation. Even the most fine-grained statistical analysis may not reveal whether economic and social rights caused a deterioration in social development indicators, or actually helped slow down the decline. 

We need not enter into that rarified debate, however. Mr. Mchangama’s main weakness is that he does not adequately engage with practical examples of economic and social rights enforcement. “Individual examples” he says “obscure our study’s broader macro-level claims.”

It is the other way around. Mr. Mchangama’s “broader macro-level claims” serve to insulate him against real-world examples.

More thoughtful critics of economic and social rights enforcement might turn to South Africa. Judges and litigants here have long been grappling with Mr. Mchangama’s concerns. Far from ordering that resources are allocated only to privileged litigants, we have tried to ensure that economic and social rights vindicate collective interests, and result in greater benefits to the poor generally. 

When protecting against a negative invasion of a right, South African law defines the interests at play and prohibits illegitimate interference with them. In the Jaftha and Gundwana cases, the Constitutional Court required that the sale of a debtor’s home to recover money be proportional to the creditor’s interest in recovering the debt. The sale of a person’s home to recover a trifling debt incurred to buy a week’s groceries will not be permitted. But the sale of a millionaire’s penthouse to recover a substantial mortgage debt will be allowed to go ahead.

Positive obligations to give effect to economic and social rights are approached differently. The Court asks whether, given the nature and urgency of the interest protected by a particular right, the state has acted “reasonably” in giving effect to it, in light of its resource constraints and the legitimate claims of others. In the TAC case, the Court held that it was unreasonable to restrict nevirapine—a drug that was proven to prevent mother to child transmission of HIV/AIDS—to a few testing sites, when thousands of newborn babies were contracting HIV/AIDS every year. The state had the resources to roll the drug out nationally and there were no doubts about nevirapine’s efficacy. The Court ordered the state to lift the restrictions it had placed on provision of nevirapine. Many thousands of lives were saved.

In the Grootboom case, the Court held that it was unreasonable of the state not to have a policy for the provision of emergency housing, when permanent housing for all would take many years to materialise, and very many poor people faced homelessness by disaster or eviction in the interim.  The state duly adopted an emergency housing policy, which has seen thousands of people given secure access to land and services in the last ten years.

In the Blue Moonlight and Khosa cases, the Court addressed unreasonable distinctions that the state sometimes draws in implementing housing and social security policy. In Blue Moonlight the Court decided that the City of Johannesburg’s housing policy unreasonably distinguished between people facing eviction by the state, on one hand, and private landlords, on the other. Those evicted by the state received temporary shelter. Those evicted by private landlords were not. The Court declared this distinction unconstitutional. In Khosa, the Court directed the state to extend social security benefits to permanent residents.

In these decisions, the Court balanced the obvious complexity of the social policies engaged (which is not unique to economic and social rights adjudication), with the need to provide fair and effective relief. While not immune to criticism, the Court’s approach has extended real benefits to millions of people.

Even when it has failed, economic and social rights litigation in South Africa has often been a catalyst for social mobilisation and political action to address rights violations. The Court dismissed the Mazibuko water rights case, but that litigation led directly to the doubling of the free basic water supply provided by the City of Johannesburg to poor people in Soweto. The Court’s dismissal of the case also did not stop many poor households from taking direct action to remove hated prepayment water metres themselves, in an act of political defiance which may have been unthinkable without the litigation.

Economic and social rights litigation has also amplified the voices of grassroots organisations who may otherwise have been marginalised or ignored in the political process. In particular, the Treatment Action Campaign and Abahlali baseMjondolo have punched well above their weight by using economic and social rights as resources in their struggles for access to healthcare and adequate housing.

In sum, Mr. Mchangama’s statistics, even if accurate, are incapable of capturing the manifold ways in which economic and social rights are campaigned for, adjudicated and enforced in South Africa alone. Statistical analysis cannot refute the reality of the South African experience. Nor can it make the recognition of economic and social rights any less essential to protecting and affirming the full range of human freedoms.