Our Contribution
Background
The South African Government did not include economic and social rights in the first drafts of the Constitution, as it feared that inclusion of these rights would lead to unrealistic expectations and/or would lead the country into bankruptcy.
Economic and social rights had been included in the ANC’s earlier Freedom Charter. A South African Member of Parliament, Professor Ben Turok MP, who had been involved in the drafting of the Freedom Charter, was concerned by the absence of these rights in the draft Constitution. In July 1995, Professor Turok invited Rights and Humanity to provide briefing materials for the Government on the international protection of economic and social rights.
Rights and Humanity Briefings
Rights and Humanity put together a series of briefings on economic and social rights and our research team undertook comprehensive research on the constitutional protection of human rights globally. Economic and social issues were covered in a number of constitutions. However, we identified that the manner in which states dealt with the obligation to meet the economic and social needs of citizens had primarily been through the incorporation into their constitutions of ‘directive principles’. These obliged states to provide such services as schooling and health care, but did not go as far as the stronger characterisation of recognising these needs as human rights per se.
We argued that the adoption of the International Covenant on Economic, Social and Cultural Rights in 1966, had confirmed incontrovertibly that access to food, health care, education and housing for instance, are human rights. Rights and Humanity therefore asserted that economic and social rights should be included in the South African Constitution on an equal basis to that afforded civil and political rights.
Our President’s Speech to the Constitutional Assembly
Doubts remained in South Africa and Professor Turok instigated a Special Hearing of the Constitutional Assembly in the National Parliament, Cape Town, so that our President could explain the obligations under the International Covenant on Economic, Social and Cultural Rights and help allay the fears of the Government. She was one of only two international speakers invited to address this special session on 1st August 1995, in Cape Town.
In her address, Ms Häusermann explained the state obligation of progressive realisation of economic and social rights recognising that it was not always possible to achieve immediate full realisation of all of these rights for everyone, However, that the obligation to avoid discrimination was immediate.
Our President explained that international law does not require states to provide free food and housing to every citizen. Rather it requires states to provide the legal, economic and social environment in which individuals might have the opportunity to meet their own needs and that of their families, complemented by the provision of social assistance for those unable to support themselves.
International law required immediate protection from discrimination and from such actions as arbitrary eviction. In other words, states should take proactive steps through legislative and other measures towards the progressive realisation of these rights and create the non-discriminatory environments in which everyone is enabled to provide for themselves.
Her interpretation of state obligations was supported from the public gallery by a representative of a squatters’ association. He confirmed that poor people living in the townships were not expecting the Government to provide them with free housing. They were demanding an end to the discrimination and other obstacles that denied them equal access to housing and land ownership.
Our President’s address to the South African Constitutional Assembly reassured the Government on the feasibility of including these rights in the Constitution, and soon afterwards the Government agreed to include economic and social rights in the Constitution.