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Q&A: Unlocking the Power of Constitutional Rights

Zahira Kharsany interviews JACKIE DUGARD, Centre for Applied Legal Studies

JOHANNESBURG, Jan 23 2009 (IPS) - South Africa’s constitution is often celebrated for its protection of social and economic rights; but how readily can this protection be invoked by the most vulnerable?

This question is one that may be considered at the first ever World Conference on Constitutional Justice, taking place in Cape Town on Feb. 23-24. Senior legal personnel from 93 countries will discuss the influence of constitutional courts on societies around the world and the development of global human rights jurisprudence.

To examine the host nation’s own experience of constitutional rights, IPS spoke to Jackie Dugard, a senior research officer at the Centre for Applied Legal Studies (CALS). Dugard was part of the legal team that won an important case in Johannesburg in 2008.

With support from CALS, Lindiwe Mazibuko and other residents of Phiri township successfully challenged the constitutionality of prepaid water meters being installed by the City of Johannesburg. A judge agreed that the city had to provide them conventional water meters and that the free basic water allowance of 6 kilolitres of water per household is insufficient.

Predictably, the case is under appeal, and is expected to eventually become the first water rights case to reach South Africa’s Constitutional Court.

IPS: How has the performance of the constitutional rights been in South Africa? Jackie Dugard: South Africa’s record, in general, on civil and political rights has been good. I think the Constitutional Court and other courts have been extremely good at defending people’s rights.

The problem has been socio-economic rights, because there have been so few cases and their decisions haven’t advanced a rights or violations-based interpretation of socio-economic rights. There has been only six socio-economic rights case in 14 years (three on housing, two on healthcare and one on social security).

Mounting a socio-economic case is extremely difficult. It’s very hard for people without huge resources and organisations to draw and mount these kinds of cases because the kind of evidence you have to put before the courts about the policies and reasonableness of the policies is just incredibly difficult.

In addition, although the Constitutional Court, formally, has the ability to hear direct access claims (ones that haven’t been through the rest of the judicial hierarchy), unfortunately, the South African Constitutional Court has interpreted the rules of direct access very narrowly, and has only allowed direct access in about eight cases and never to remedy a situation of a poor/disempowered person who might otherwise not have his/her claim heard in the normal hierarchy.

This is the opposite practice to the highest courts in countries like India, Columbia, Costa Rica, where the highest court actively promotes and facilitates direct access, to allow poor people who may not otherwise be able to bring their cases through the whole judicial hierarchy.

Unfortunately in South Africa we haven’t gone that progressive route. So I think for poor people the only way they can have their cases heard, if they are about socio-economic rights, is through partnering with the few legal interest organisations that exist.

So socio-economic rights in South Africa are a double-edged sword. On the one hand, South Africa can be proud of having entrenched socio-economic rights in the constitution and the Constitutional Court is looked at as an example of how these rights have been made justiciable.

But there has been a lot of criticism of how they have been adjudicated. Instead of adopting a minimum core content or violations approach, the Constitutional Court has adopted a weaker standard – the test of reasonableness.

Essentially this reasonable test is a very complicated, laborious difficult thing. Because it means you have to really become more of an expert in government policies then they are. That requires time, resources, focus etcetera which again many organisations don’t have.

The last reason why I think socio-economic cases have not come to the fore is that so far the remedy that the courts have offered is not tangible to the people. Because the whole thing revolves around the reasonableness of the government policy, the remedy has been to remedy the policy. So classically what happened in the famous Grootboom case, around the issue of housing, is she died recently before she ever got a house.

Many poor communities ask: What’s the point? What’s the point of going to court? What’s the point in launching these enormous battles when in fact you don’t get anything in the end?

I think we have an extraordinary constitution. I believe unfortunately that the courts have not actually persuaded it to the extent of its power.

IPS: Leading up to the world conference, do you think this is beneficial to constitutional courts across the world? What has South Africa got to offer the 93 countries attending? JD: Yes I think we do. I think it is a very positive thing. What is interesting to do is to share experiences, particularly with Latin America about what they do to facilitate poor people’s voice in court. I think this is our big failing.

Apart from the criminal justice system, that’s all defensive. When somebody is caught up in the criminal justice system they are provided with defence, but the issue obviously then is, it’s not a proactive utilisation of the laws.

That’s the interesting thing about socio-economic rights, particularly regarding the positive obligations perspective. In terms of negative obligations, for example, if you going to be evicted from your house then yes of course you act. But it’s on these positive obligations that you really see whether people look to law as one of their answers or one of their potential answers. I think the jury is out on that.

Essentially what’s interesting to look at other courts and to have this exchange with other courts is to see how other courts are dealing with these issues. There are courts actually with much less high profile then South Africa, South Africa is always lauded, but other countries are quietly doing it every day.

I gather in Brazil judges regularly when someone comes to them and says ‘I’ve got cancer, I can’t afford the drugs’, the judge will write a prescription and say ‘go to the pharmacy and get it for free’.

Law is a conservative profession; it is as essentially you applying something which exists. So it tends to ossify unless you have dynamism within it. So I think these sorts of exchanges are a form of dynamism.

Almost, if not, all South African judges have studied law without much reference to socio-economic rights jurisprudence. So many judges don’t know where to look to get inspiration on how to tackle these socio-economic rights cases. I think that hopefully some interesting things will come out from the conference.