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Article Excerpt
Abstract: Coming out of the apartheid nightmare in 1994, South Africa became an immediate sovereign beacon for global justice with its path-breaking Constitution of 1996 that is the most rights-protective in the world. South Africa's Constitutional Court has garnered global acclaim for the quality of its legal reasoning and the strength of its rights-protective commitment. Decisions such as that prohibiting the death penalty under the Constitution, in a national context of growing crime rates, have inspired rights-protective legal and judicial approaches throughout the global community. This is similarly true for the Court's decisions--especially in the Grootboom and Treatment Action Campaign cases--more recently. This paper explores the Court's contributions to global justice notions through its legal reasoning in Grootboom and subsequent related cases. Particularly, the paper examines the Court's use of "reasonableness" as an essential element of its justiciability analysis, and asks how reasonableness here advances notions of justice regarding the particular importance to poor people in South Africa, and elsewhere, of effectively enforcing economic, social, and cultural rights as legal rights. The Court's use of reasonableness is compared with approaches on the same major issues in the reports of the United Nations Committee on Economic, Social, and Cultural Rights, which provides standards of global justice for these issues. The question here is how strongly in a justiciability analysis this Court should push its judicial authority towards having actual decisional influence on national resource priorities and allocations, including where resources are scarce. Issues and arguments are also explored as to whether the Court has done all it could do in its legal approach to these rights. Whether or not this Court 'has gone far enough' in protecting these rights, however, it has provided a model for the competence of courts anywhere to protect these rights as legal rights--notwithstanding a western legal history of strong expectations and market demands to limit them to 'aspirations.' Through principled legal analysis it has held that where great needs exist for poor people, not least those of color, judicially-enforced legal rights can provide access to critical resource transfers for their basic welfare.
PROLOGUE AND INTRODUCTION
The judicial leadership of South Africa's able Constitutional Court under both that country's national Constitution and international law, in defining and enforcing economic, social and cultural rights for South Africans through holdings in important cases, has been prominent in the world community. [2] It has been both nationally and globally significant in the struggle to protect economic rights against what amounts to different shades of global economic apartheid. The Court's analytical strategies and jurisprudential approach in protecting these legal rights, in a nation of limited resources whose history and economy remain tortured by the results of comprehensive apartheid, are the focus of this article. Some assessment of the Court's work will be presented, as it has decided issues relative to protecting these rights, including justiciability, separation of powers, "minimum core" rights, "reasonableness," scope of remedial orders and judicial supervision, constitutional duties versus international legal duties, and judicial restraint versus the need to define a new role of judicial involvement in protecting and enforcing this particular category of human rights.
Assessments of the Court's work in South Africa can help us understand, among other things, the Court's contribution to global justice along this global frontier of potential resource transfers as a matter of legal rights, as these rights confront refusals from entrenched interests to modify processes of exclusive wealth and privilege. Since the global judicial potential and success on these issues contributes directly to an answer to Heilbroner's question below, judicial orders upholding and enforcing the economic rights of those petitioners before the Court generally represent a real or potential resource or wealth transfer across the fault-line to those particular poor people of color and all who are similarly situated on those issues.
Establishing and maintaining the legal existence and enforceability of international economic, social, and cultural rights is critical to realizing any system of justice in the world's organized nations and communities. Doing so is particularly critical for communities of color who are embedded in economic contexts and processes that are leveraged or dominated by Anglo-American, Western European and generally Northern Tier decision-makers and interests. Protecting and enforcing these rights under the rule of law is especially pertinent to the prominent late economist Robert Heilbroner's question of whether a global politics will evolve in the near future which realistically can promise a transfer of wealth and resources to people of poor and deprived communities of color, which will be of real meaning in bettering their lives. [3]
With the rise of rampant official free market ideology, of public equations drawn between money and public praiseworthiness, and the elevation of policy trends facilitating and demanding that Southern Tier nations welcome incoming multi-national foreign investment, there is much reason for pessimism about a positive answer to Heilbroner's question. All the more so because this question in the current global policy context inherently brings into play strategies by dominant power-holders that subordinate such poor communities, and create divide-and-conquer strategies aimed towards destroying the leverage needed to improve these communities by fragmenting their effective leadership, and undermining their political unity. In other words, the attempted claiming and enforcement of human rights, and particularly economic, social and cultural rights, tends to bring forward an array of the aggressive and traditionally crude, as well as the subtle and carefully tailored strategies of race and class domination from above.
The priority to enforce these human rights has long established a global fault line between the haves and have-nots--a frontier patrolled by those interests able and willing to use all means, including violence, to prevent any meaningful transfer of wealth and resources. For example, this was the case--in systemic terms--for the assassination of Martin Luther King, Jr. in 1968 in Memphis, during his presence to support the economic rights of that city's public sanitation workers and during the last stages of his planning for the Poor Peoples' March on Washington later that same year.
That same frontier, fortunately, is also patrolled and mediated by a process of legal and jurisprudential invocations, prescriptions, enforcement, appraisals and determinations of the body of international economic, social and cultural rights under international law, intertwined as those rights may be with their constitutional and other legal analogues in any specified country. [4] Under the principles of its 1996 Constitution, which I consider the most rights-protective in the world, South Africa, as a new nation of thirteen years, and its excellent Constitutional Court are barely holding their positions on this global fault line, as the nation struggles to rectify the embedded continuing problem of economic apartheid. [5] It is a commonplace that this problem has long exhibited international and national strategies of racial and class deprivation, in the context of Northern Tier and allied internal pressures to define economic justice as maintaining a free market, foreign investment-friendly national economy.
The last part of this article will look at the Court's holdings in this regard in light of both differing and harmonious perspectives from the United Nations Committee on Economic, Social, and Cultural Rights (UN Committee on ESCR), which I take as indicative of international organizational perspectives about global justice standards. [6] I do so to further understand this Court's decisions in particular cases, as they contribute to building perspectives of global justice around the enforcement of these legal rights, along the great length of, as well as across, the global fault line.
SOUTH AFRICA'S GLOBAL JUSTICE LEADERSHIP
Progress has indeed been made by the South African government and South Africans since 1994, in spite of large obstacles, towards meaningful transfer of resources across this fault line to meet the great needs of the many Black and Coloured South Africans. In this regard, South Africa has already given the world community much justice-leadership, even beyond the epochal anti-apartheid movement. It has given us the institution of the Truth and Reconciliation Commission, the philosophy of ubuntu to approach one's former enemies, and through the essential historic leadership of Nelson Mandela, it has recalibrated, for the guidance of peoples and states everywhere, the relationship between revenge and justice, through truth-telling, honesty, and reparations. [7] But there is much yet to do, especially regarding economic justice.
To better understand the Constitutional Court's work, we should widen the frame of South Africa's post-1994 global justice-leadership. Archbishop Desmond Tutu has made the prophetic insight that South Africa is a laboratory for the world: if its peoples can work out ways to get along equitably, the world will directly profit by its example. [8] This insight gains importance in light of the historic symbiosis, not least in the matters of race long discussed by George Fredrickson and other scholars, between South Africa and the United States. [9] This symbiotic linkage with the world's current sole hyperpower has had some positive recent consequences for the world community. They include the visibility of South Africa's advocacy of a more just U.S. policy towards Cuba, and greater visibility, especially through Mandela's observations, of the illegality of the U.S. invasion and occupation of Iraq in 2003.
However, the same symbiosis has had negative consequences in the vulnerability of a new South Africa, just getting organized in 1992-94, to American and European pressures to relinquish the ANC (African National Congress) Freedom Charter as the rightful economic map to address the monster distortions of the apartheid economy. Thus, its organizing leadership and processes of decision may have been prematurely prodded to adopt a free market, free-trade approach to national economic objectives, and a subsequently deep and vulnerable reliance on Western foreign investment to provide essential development capital for bringing the majority population of Black South Africa into the national economy on an equitably beneficial basis. More recently, though, the symbiosis has had further beneficial consequences for South African justice-leadership and the international community. Under strong national NGO leadership, it has served as a framework to define, at the opening of the 21st century, the principle that international trade law must provide, in conjunction with their human right to health, affordable essential medicines to people in South Africa and elsewhere who are HIV-infected, no matter the source of these medications. South Africa has further defined that such a right cannot be infringed by the claimed patent-protective legal prerogatives of American or other international pharmaceutical companies who originally developed such medicines. [10] Thus, it is in this wider frame of the New South Africa's global justice-leadership that the leadership of its Constitutional Court in protecting economic, social and cultural rights under law must be understood.
THE COURT'S JUDICIAL LEADERSHIP
The South African Constitutional Court has taken a globally prominent leadership role in protecting economic rights in a series of major cases, beginning, for the purposes of this article, in 1997. Among these are the Soobramoney case in 1997, the Grootboom case in 2000, the Treatment Action Campaign case in 2002, and also the Port Elizabeth Municipality and Jaftha cases in 2004. [11]
In each of these cases, as many South African and international commentators have already discussed, the Court recognized, developed and refined the justiciability of various economic, social and cultural rights. These decisions enabled the Court to protect these rights for South Africans as their legal rights under the South African Constitution, and also as rights under international law, notably codified by the ESCR Covenant. [12] In doing so, the Court aimed to ensure that these rights are protected as legal rights that are entitled, and not as discretionary executive, administrative, or legislative governmental policy contingencies.
The Court has decided these cases against a history, along with continuing practices, of much Western official and academic opposition to such justiciability, i.e. the notion that these rights are quite manageable by judicial courts, which should play an important role in interpreting and protecting them under law to individual petitioners. This history of opposition, much of which stems from cold war perspectives on this entire body of rights as 'socialist' or 'communist,' has persisted notwithstanding the wide global scope of ratification of the above-noted Covenant. [13] The United States signed this treaty in 1976, but has not yet ratified it, nor has it permitted itself as a nation to have the crucial national conversation about economic rights as legal rights as South Africa has done. The ESCR Covenant provides some ammunition for these rights' opponents by its textual definitions of gradual state duties, but still creates international legal obligations, to support and enforce them domestically. [14] Nonetheless, in the intervening years, as the global demand for such legal protection has generally risen, there has been much United Nations and international...
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