Thursday, March 22, 2018

South Africa

Sexual Matters in Africa: the Cry of the Adolescent Girl

Oluyemisi Bamgbose

excerpted from: Oluyemisi Bamgbose, Legal and Cultural Approaches to Sexual Matters in Africa: the Cry of the Adolescent Girl , 10 University of Miami International and Comparative Law Review 127 (2001-2002) (65 footnotes)

In contemporary times, the issue of sexuality is an aspect of reproductive rights, which is internationally recognized as critical to the advancement and promotion of adolescent human rights. However, under the African culture, open discussions on certain issues on sexuality are regarded as taboo. Cultural norms forbid the teaching about sexual relations and each person is supposed to find out all there is know by experience. Paradoxically, there are some cultural practices having sexual connotations that young adolescent girls are encouraged to become involved in and in which they are tutored from childhood. Such issues relate to the puberty stage of the adolescent girl and are commonly linked with rituals, festivity and celebrations. Closely linked with these cultural practices that have an effect on the sexuality of the adolescent girl are various myths that ensure conformity. Some of these cultural practices are discussed below:

A. Child Marriage/Forced Marriage

Child marriage and forced marriage are closely knitted. Under many African traditional cultures, the marriage of a girl is entirely the responsibility of her father if she has not attained the age of puberty. The father gives her away to a person of his choice without consulting her or her mother.

The practices of early marriage with all its sexual implications exist amongst people in certain parts of Africa. Under the TIV culture in Nigeria, girls are generally treated as "parcels to be exchanged in marriage." In an exchanged forced marriage known as "Kwase Yamwn Sha," a male family member exchanges his adolescent sister or ward for a girl in another family who then becomes his wife. In this type of marriage, the young adolescent girls are forced into marriage without being able to make a choice. Such girls are usually exchanged to a man who is elderly, ugly, diseased or disabled.

In Kenya, child marriages are not unique to a certain clan but exist in several cultures. Among the Maasai people in Kenya, as soon as a girl is circumcised she is married at the age of twelve. In the Hausa culture of Northern Nigeria, the culture of "Kunya" meaning modesty or shyness encourages girls to remain shy and obedient. The effect on sexuality is the forced marriage to an older man without question.

According to Usman, young girls that are forced into early marriages are indecently assaulted or "raped" by such older men. She further described a horrifying practice where such older husbands resort to incising, cutting or puncturing the genital of the young girls with sharp objects or blades to allow penetration during intercourse. This act has direct bearing on another sexual issue known as "marital rape" which, unfortunately, is not recognized in most of the legal systems in Africa.

In most parts of the Hausa land, child marriages are the rule rather than the exception. Children are usually married off between the ages of twelve and thirteen in large towns, and at younger ages in villages. In some parts of rural Hausa lands, a girl is married away to a boy or man at the very early age of five or six. It is said that such a young child goes to her marriage home at this age and is nursed and generally brought up by her husband. However, the husband does not have sexual relations with her until he thinks she is ready for it and certainly not below the age of twelve. In spite of the prevalence of child/forced marriages in many African countries, there are legal provisions prohibiting sexual intercourse with any girl under the age of fourteen. There is also a national policy on population in Nigeria that discourages early marriage.

Several reasons are adduced to support the cultural practice of child/forced marriage. The following are just a few of the reasons given. First, it prevents premarital sexual relationships. There is the belief that if a young girl is left unmarried after puberty she is bound to have premarital sexual relationships. Also, under many African cultures, the preservation of virginity before marriage is cherished, honored, rewarded and celebrated. The parents of a virgin bride are rewarded with gifts, the virgin is cherished by her husband and honored by his family. In the traditional societies, there is a celebration immediately the marriage is consummated and the bride is found to be a virgin. Similarly, there is the unjustified belief that a child bride comes to learn and venerate her husband from a very early age and will become firmly attached to him as she grows older. This is not always true as there have been cases of expressed hatred by the brides towards the chosen husbands leading to the child brides killing these husbands and running away. There is also the belief that at such a young age, a young adolescent girl has not reached the age of defiance and would accept her father's choice of a husband as a "good choice of a wise and matured father." Also, it is alleged that at such a young age, adolescents are more likely to be influenced in their choice of a husband based on affluence and looks. It is said that parents decide to marry them off before they make rash decisions. Lastly there is a mistaken notion by some older men who take child brides that sexual relation with young girls reenergizes them as men. There is no doubt that the cultural practices of forced/child marriages are capable of abuse. Greedy parents may marry off their daughters to older men for mercenary purposes while others give out adolescent children to royalties for purposes of prestige.

B. Female Circumcision/Female Genital Mutilation (FGM)

Female Circumcision, popularly known as Female Genital Mutilation, hereinafter referred to as FGM, is culturally considered proof of femininity and a "demonstration of a woman's courage." FGM is a collective name given to several different traditional ritualistic practices that involve the actual cutting of female genitals, either totally or partially, and the removal of sexual organ. There are basically three types of practices and they are briefly discussed below:

Clitoridectomy: The partial or total amputation of the clitoris, which is the female sexual organ.

Excision: The amputation of both the clitoris and the inner lips.

Infibulations: The removal of the clitoris, some or all of the labia minora and incisions in the labia majora to create a raw surface. These raw surfaces are either stitched together or kept in contact until the skin heals as a hood covering the urethra and most of the vagina.

Traditionally, FGM is carried out in unhygienic surroundings with the same instruments used for several girls as group excision is common. However, in modern days, practitioners are more aware of the risk of tetanus, HIV/Aids and extensive hemorrhaging.

This cultural practice, affecting the sexuality of the female adolescent upon who it is commonly practiced, crosses all social classes and backgrounds. In recent times, an increasing number of educated parents are opposed to it, but are sometimes powerless in the face of stiff cultural pressure. It is interesting to note that women are the perpetrators and have been accused of being the strongest supporters. In Burkina-Faso a magistrate claimed that in almost all cases of excision brought to trial it is mothers-in- law, grandmothers, aunts, and mothers who took the initiative to have the child excised.

In many Africa cultures, childhood ends by custom at puberty or marriage. It is very rare in African traditional cultures for the transition from childhood to adulthood to be measured by a precise date and a chronological age. FGM, therefore, has a symbolic value associated with adulthood and it is an important part of the initiation right of young women.

C. Cultural Practices

Under the Burkinabe culture in Burkina-Faso, excision takes place after the harvest and it is followed with music, dancing and feasting. In Peru, near Bobo-Dioulasso in Burkina-Faso, a girl is excised on the day of marriage itself and later honored with a festive ceremony. In recent times, the initiation aspect of excision no longer exists because females are now excised at a very young age. In Nigeria and Burkina-Faso, infibulations are less practiced and variations in the age at which excisions take place exist.

In the cultures of the Ijaws and Etsakos in the Bendel State of Nigeria, FGM is a premarital ritual. However, among the Urhobos and Isokos of Delta State of Nigeria, it is performed during a woman's first pregnancy. According to Eliah, the Sabiny people of Uganda cling to the age-old tradition of female circumcision. Under this culture, the preparation for the initiation ceremony of circumcision commences in the month of December of every year. This includes feasting, dancing and secret briefing which leads into a public celebration on the day the circumcision is done. According to Koso--Thomas, among the Mendes in Sierra Leone, the loud drumming, singing, dancing and shouting is said to drown the cries of female initiates during the ceremonial circumcision.

Female circumcision is a deeply rooted African practice held with much pride. Under the Samburu culture in East Africa, it is a rite of passage in which the girl is formally initiated to womanhood. Young girls are informed at a very young age about the importance of circumcision through songs and dances designed to have this message sunk deep into them. The circumcision ceremony is organized in a home and friends are invited to share in the "joy" of the family and in the passage of the young girl into adulthood. To show the importance of female circumcision among the Somali tribe in Kenya, there is a saying that "an uncircumcised girl is like a rotten carcass in the center of the house" and a circumcised girl is like a rose flower in a desert shrub." Legal Provisions

In all the countries where FGM is prevalent, the government has attempted to address the problems arising from the practice through means other than statutes. However, all the countries have constitutional provisions that could be used to address FGM. Only very few countries specifically criminalize the practice of FGM, among which are Ghana and Burkina-Faso. Many other countries have provisions in their respective penal laws that prohibit assaults or infliction of bodily harm to any person. In addition to these legal provisions, there are health policies in many of the African countries addressing the practice of FGM.

FGM is geographically common and widespread in Africa though unknown in certain African countries. Statistics show that the prevalence in Ethiopia is 90%, Nigeria 60%, Ghana 30% and Tanzania 10%. The practice is insignificant in South Africa and Zimbabwe and not practiced at all in Southern Sudan, and some Arabic speaking countries of Northern Africa, with the exception of Egypt.

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Within a dynamic notion of culture, the issue of the protection of the sexuality of the adolescent girl is essential to cultural survival and continuity. The preservation of cultural identity and promotion of social and political cohesion are legitimate objectives. However, the right to belong, to contribute and to participate in ones community, as a full member should not be conditioned on the price of human suffering. This practice put young girls in the unjust position of having to jeopardize either their right to health and bodily integrity or the esteemed privilege of social acceptance. Their full right to full social integration should not be conditioned on the waiver of their constitutional guaranteed right to life, health and dignity of their person.

There are many problems within our culture that adolescent girls have to contend with. It has been argued that the morality and personality of an individual are shaped by the culture and the history of a given society. It is true that adolescent girls have rights and culture should not be used as an excuse for human rights abuses. It is also a fact that cultural practices are subject to Universal Human Rights Limitation. What is needed now is for the society at large to take note of the cry of the adolescent girl. Each sector has a duty to perform and a part to play. The pooling of efforts is the solution to her cry.

The government must manifest an even stronger political will, the non- governmental agencies must intensify their vigilance and campaigns against the acts discussed above must continue for the populace must be educated and informed about the continuous cry for help of the adolescent girl.

The focus of attention must shift from mainly punitive steps against the offender to preventive measures for the adolescent girl. No amount of penalty to the perpetrators can hope to repair the damages caused to these young ones. Reparation is not the answer to their cry because their purity must remain unscathed and preserved for them to enjoy their adolescent life now and their adult life in the future.

Discrimination and the South African Legal Profession

Lisa R. Pruitt

excerpted from: Lisa R. Pruitt, No Black Names on the Letterhead? Efficient Discrimination and The South African Legal Profession , 23 Michigan Journal of International Law 545-674, 546-553, 671-674 (Spring 2002) (442 Footnotes)


Although there have long been black lawyers in South Africa, during apartheid only a handful joined the ranks of the country's large commercial firms. Now, in the post-apartheid period, these firms are keenly aware of a range of economic and political incentives to hire black attorneys, and most are doing so at a record pace. Very few black attorneys, however, are enduring the path to partnership in these firms. Based on more than seventy- five interviews conducted in South Africa in 1999 and 2000, this Article both documents and critically examines the reasons for black attrition. While firms' incentives to integrate include commercial ones associated with clients' newfound attention to the racial diversity of their vendors, such incentives apparently have not yet outweighed the forces impeding integration--some of those forces being incidental to the country's history and politics, some attributable to the institutional characteristics of law firms, others to the acts of individuals within those institutions. Although the underrepresentation of blacks in these firms is frequently attributed to blacks' own failings or choices, Professor Pruitt argues that the lack of integration is also the result of discriminatory actions of white individuals and the institutions they run. Still building on the descriptive platform she has laid, Professor Pruitt goes on to construct a model of efficient discrimination with respect to South Africa's elite legal sector, arguing that firms are able to survive in the new marketplace, even absent retention of black attorneys, because the power of the incentives to integrate does not match the rhetoric around it. In addition, because no firm is achieving integration and thereby taking advantage of existing incentives, no firm is raising the integration quotient, which would presumably challenge other firms to do the same.


The emerging black business elite will be looking for black firms. The white firms will adapt [and] offer black practitioners partnerships. There will be African names in partnerships of large firms. You find no one in this country who ever supported apartheid. Firms are behaving with the ostensible zeal of new converts.

-- Judge, High Court of South Africa

Tomorrow is Another Country, the title of one of the popular books about South Africa's transition to democracy, denotes the country's rapid move from apartheid to majority rule over the course of a few years in the late 1980s and early 1990s. "Tomorrow," however, has not proved to be "another legal profession" there. The pace of change and racial integration of many sectors of South African society has been relatively swift during the post- apartheid era. Those referred to in South Africa as blacks--including indigenous Africans, mixed-race individuals called coloreds, and South African Indians --are entering the legal profession at a record pace. Integration is proceeding slowly, however, in the country's large commercial law firms, which are located primarily in Johannesburg and Pretoria, what is now Gauteng Province. This Article describes the changing opportunities black attorneys have both within and outside these elite law firms in post-apartheid South Africa to theorize why so few black attorneys are succeeding and remaining in commercial law firms there.

A dearth of published information and analytical literature exists on the South African legal profession. There is also a real scarcity of data on its demographics and other features. For example, no official statistics on the race of those currently admitted to practice or of those being admitted to practice are kept, leaving one to rely on partial and unofficial statistical accounts. To date, the academic literature on the South African legal profession has primarily been comprised of descriptions of actual or proposed changes to legal education or to the regulation of the profession, as well as some commentary on the role of law and lawyers in perpetuating and, alternatively, ending apartheid. Very little information is on record about the profession's social structures or about law firms in particular.

This Article seeks to partially fill this void by presenting information gained through more than seventy-five interviews, conducted almost exclusively in South Africa between March 1999 and July 2000. While the majority of those interviewed were black South African law graduates who were up to seven years into their careers, attorneys of all races and at all stages in their professional careers were interviewed, along with law students, legal educators, and judges. Interviews were not conducted using a set list of questions. Nevertheless, the interviews generally proceeded along the same format, beginning with a discussion of the subject's personal and educational background, followed by a discussion of her career trajectory and professional experiences, including the perceived impact of race, if any, on those experiences. This Article thus represents "legal journalism" in which common themes and experiences of those interviewed reveal what is happening within the firms, as well as in the larger labor market. The result is a snapshot of the South African attorneys' profession at the turn of the 21st century.

The interview data collected, which serve as the foundation for this Article, provide the first-ever comprehensive look at the elite commercial segment of the South African legal profession, offering an insider's perspective on the opportunities blacks have within the country's elite law firms and the obstacles to partnership and true integration that remain in their paths. It considers critically the economic and other incentives firms have to hire and retain blacks, as well as how firms are responding to these incentives. It examines how firms recruit, train, and promote attorneys with a view to understanding how the firms' institutional features, along with the actions of individuals who comprise those institutions, shape the experiences black attorneys have there. Those experiences, in turn, often drive black attorneys' decisions to remain with the firms or to pursue professional opportunities elsewhere.

Using this descriptive background, this Article theorizes about the dynamics of racial discrimination in these large elite firms. In a comparative vein, the analysis draws on David B. Wilkins and G. Mitu Gulati's scholarship on race and the legal profession in the United States to construct a theory of "efficient discrimination" in relation to South Africa's elite commercial firms. Specifically, it explains how firms are able to survive with only token black attorneys, few or none of them partners, even when the market purports to value diversity and when South African attorneys tout the commercial value of "having black names on the letterhead." In sum, this model posits that institutional structures help conceal the discriminatory acts of individuals, preventing these firms from being reputed--much less proved--to be racist. The model further posits that these firms are able to survive in spite of discriminatory behavior and policies that disadvantage black attorneys, in part because none of the elite firms is achieving the vaunted integration and the business advantage purportedly associated with it.

This Article begins with a brief overview of South Africa's recent social and political history, followed in Parts II and III by two descriptive snapshots of the legal profession, the first during apartheid and the second in the post- apartheid era. It then reviews, in Part IV, the relevant literature on large law firms and the economics of discrimination as a prelude to discussing Wilkins and Gulati's germinal work on race in elite law firms in the United States. In Part V, it returns to a fuller discussion of South Africa's commercial law firms. It discusses both the forces driving racial integration in this elite legal sector, as well as how firms are responding with their hiring and training efforts. Finally, in Part VI, it theorizes why these firms are failing to achieve integration and how they are able to survive in the current market without it, thus articulating a theory of efficient discrimination.

. . . .

You basically are struggling for the other people. Because at some stage I say why am I putting myself under such enormous pressure, and I say, if I quit, those first-year law students will never get into the profession. Let me just stick it out even if I don't benefit now, they will later respect us, the few, and say "you people, we can imagine how you must have been working then." And you're first struggling with money, you have student loans, you have your sister [to send to school, you have] an emergency, and now you're another small Mandela.

-- African female professional assistant

Many professional doors have been opened to black attorneys in post-apartheid South Africa--doors that for decades were closed to them by virtue of their color. One such opportunity is that of practicing in the country's elite commercial law firms, a predictable one given the appreciation for racial diversity in the "new South Africa." While black law graduates are moving into these firms at an unprecedented pace, however, few are remaining with the firms for more than a couple of years, often no longer than is required for them to become admitted attorneys. Early in their legal careers, even in comparison to their white counterparts, these black attorneys take full advantage of their mobility in the current labor market to pursue alternate career opportunities in both the public and private sectors. Thus the two questions investigated here: Why is black attrition from white firms so high? And, why in a market that offers economic incentives to integrate is no firm doing what is necessary to achieve integration by acting to retain the black attorneys?

The answer to the latter question, of course, depends on the answer to the former, as effective law firm retention efforts will necessarily respond to the reasons blacks leave. As the interview data indicate, blacks and whites often have different explanations for the paucity of black attorneys in the upper ranks of the country's elite commercial law firms. Among black explanations are a range of structural factors, including very low law firm salaries and a plenitude of other, often better paying, professional opportunities. In addition, many blacks experience cultural alienation and professional isolation in these firms, partly as a consequence of the racist attitudes of individuals and partly as a consequence of institutional structures, which permit such biases to go undetected and, therefore, undeterred.

In particular, many blacks attorneys' decisions to pursue alternate career paths are driven by their perception of lack of opportunity in these firms, which is often linked to the lesser training and mentoring black attorneys get, as compared to their white colleagues. Blacks often complain, for example, that they are doomed to failure in these institutions based solely on the lack of work. Many blacks may believe that whites will never accept them as equal colleagues, as partners. The odds against attaining partnership may appear so great that the vast majority of black attorneys are unwilling to make the sacrifices necessary to seek it in earnest. Partnership simply does not look like a plausible bet for them, let alone a safe one.

The white establishment, not surprisingly, offers an alternative version of events. They explain that black underrepresentation in these firms is primarily attributable to black shortcomings, including intellectual inferiority and deficits of human capital, interest, loyalty, and perseverance.

Having considered these competing explanations, one might fairly conclude that there are both legitimate and illegitimate reasons for the dearth of blacks in South African commercial firms. Rejecting as factually unsupported the myths of black intellectual inferiority and lack of interest in commercial law, and putting into proper perspective the handicaps represented by many blacks' inferior educational opportunity and lack of exposure to matters of commerce, other explanations must exist for the failure of firms to retain black attorneys. Certainly, the low salaries that firms pay to young attorneys, along with the wide range of opportunities for equal or better-paid jobs in other sectors of the labor market, heighten the challenge for firms genuinely seeking to retain attorneys of color. However, if as the interview data and other evidence indicates, many blacks are interested in commercial legal work and, indeed, are actively seeking it, more must account for the phenomenon described. This seems particularly clear if the economic incentives these firms have to retain and promote black attorneys are as powerful as the rhetoric indicates.

Underrepresentation of blacks in South Africa's elite law firms can be accounted for in a model that accounts for the interplay of both institutional racism on the one hand and individual racism on the other. Blatantly racist acts are not required in order for blacks' careers to suffer. Indeed, their careers may suffer when subtle acts of preferring whites over blacks go undetected, and therefore undeterred, in the marketplace. Thus, the lack of transparency resulting from South African firms' institutional structures and features is also a culprit, protecting firms, as it does, from the theoretically correcting power of the market.

The interview data and other evidence indicates most large commercial firms are not taking advantage of the opportunity they have to discriminate against blacks at the hiring phase. This is likely because of institutional oversight of the recruitment process, by setting quotas, and because individuals within firms are not much threatened--if at all--by the presence of junior black attorneys. These firms' practices around training and promotion, on the other hand, appear to be a much more significant part of the discriminatory dynamic. Ample opportunity exists at those stages for individuals within firms to exercise their taste for discrimination in their day-to-day interactions, and their taste for discrimination is likely greater because the more highly skilled black attorneys become, the greater their threat to the white establishment. While the opportunity to discriminate is quite clear, what is less certain is why firms are not doing more to detect and deter such individual acts of discrimination, given what appears to be at stake.

Some combination of four factors likely explains elite firms' failure. First, there is the taste many white South Africans have for discrimination and the enormous institutional challenge of curbing it. Just as institutional structures prevent the market from detecting discrimination, they may also prevent firms from detecting it from within. It is difficult if not impossible for firms to monitor all individuals' actions for discriminatory behavior because of the subjective nature, for example, of assessments about the quality of a junior attorney's work. Institutional structures could be altered in an effort to centralize and therefore exert greater control over the training and mentoring of black attorneys. This could be done with a view to curbing individuals' acting on their preferences to train attorneys who look like themselves or, to state it more pejoratively, acting on their desire to retain for themselves and their "kind" sophisticated and highly valuable skills. Efforts at greater internal oversight of skills transfer might nevertheless prove largely futile. This is because the relationships and experiences that many blacks need in order to survive in a firm cannot be imposed or significantly improved simply by virtue of closer institutional oversight. In short, those averse to mentoring and training blacks are unlikely to be moved to do a considerably better job at the task by virtue of oversight of a committee or designated individual seeking to enforce the firm's policy of skills transfer, retention, and promotion of attorneys of color.

Second, firms may also be failing to act more vigorously to retain blacks among the ranks of their senior attorneys because they believe blacks can never be effectively integrated into these white institutions. Related to this, as well as to the taste for discrimination, is likely a desire by many whites to maintain the status quo, in part because of the value of the skills they have long monopolized. To state it cynically and bluntly, in some ways it is in whites' best interests not to integrate because doing so represents a relinquishment of economic power.

Third, also related to this perceived difficulty of achieving integration is the cost associated with doing so. Firms likely believe that it will be costly to integrate "atypical" black attorneys because many of them require more training and mentoring than their "typical" white counterparts, costs that the firm must bear in order to facilitate blacks' assimilation. Furthermore, white firms probably are also concerned about integration costs associated with the diminished morale of white workers who resent the presence of black attorneys, whom many whites see as undeserving. All of these costs, however, would seemingly be outweighed by the commercial rewards of achieving integration that appear to await any firm that does so.

The fourth factor relates to the reality about those very commercial rewards. The fact that no elite, historically white firm is clearly on the path to significant racial integration, however, indicates that the apparent commercial advantage of integration must be little more than that: merely apparent. Alternatively, it could mean that firms are presently able to survive in spite of their failure to retain blacks simply because no major firm in the marketplace is retaining and promoting blacks to a considerably greater degree than any other. In effect, because no firm is "getting it right" and scooping up the business advantage that racial integration appears to offer, firms remain on a level playing field--almost as if by gentlemen's agreement among themselves--with respect to diversity. Because no single firm is raising the bar, as it were, other firms are not compelled to follow, let alone exceed that standard, in order to remain competitive. All firms are stuck in the pit of mediocrity--if not outright failure--with respect to racial integration.

Prospects for meaningful racial integration of South Africa's elite commercial firms look bleak at the turn of the 21st century. While rhetoric around the value of racial diversity is plentiful, individual and institutional action that would promote and sustain it in the context of elite law firms is scarce. The passage of time will be part of the solution, as the socioeconomic and educational legacy of apartheid wanes so that more black law graduates are better able to compete on a level playing field with their white counterparts. However, until white firms commit themselves to the training and retention of black professionals in a more earnest way than they have so far, the attorneys' profession is destined to remain a highly segregated one where whites continue to hold a virtual monopoly on the most elite and valuable skills, and the clients those skills attract.

Learned from the South African Constitutional Court

Paul Nolette

excerpted from: Paul Nolette, Lessons Learned from the South African Constitutional Court: Toward a Third Way of Judicial Enforcement of Socio-economic Rights, 12 Michigan State Journal of International Law 91-119, 91 (2003) (153 Citations)

The question of whether constitutionally recognized socio-economic rights are judicially enforceable remains a hotly debated issue throughout the world as the number of socio-economic guarantees appearing in national constitutions continues to grow. Much of this debate, however, is conducted on a purely theoretical level since judicial precedent speaking to the issue is remarkably thin. This lack of judicial precedent has made it difficult to predict how judicial enforcement might actually work in practice.

Recently, however, South Africa's Constitutional Court has decided a number of significant cases that provide important insight into the judicial enforceability of socio-economic rights. The South African constitutional system, as an "administrative law model of socio-economic rights," presents a "novel and highly promising approach to judicial protection of socio-economic rights." This is because the approach "answers a number of questions about the proper relationship among socio-economic rights, constitutional law, and democratic deliberation." In particular, the Court's approach "promote[s] a certain kind of deliberation, not [] preempting it, as a result of directing political attention to interests that would otherwise be disregarded in ordinary political life." The insights provided by the South African system contribute greatly to bridging the gap between theory and practice.

This note builds upon Professor Cass Sunstein's observations that the structure of the South African Constitution, coupled with the important decisions of the Constitutional Court in Government of the Republic of South Africa and Others v. Grootboom and Others (hereinafter Grootboom) and Minister of Health and Others v. Treatment Action Campaign and Others (hereinafter TAC), offers a workable solution to the problem of the judicial enforceability of constitutionalized socio-economic rights. The South African system provides a rejoinder to those who claim that enforceability of socio-economic rights gives the judiciary far too much power (and that it is ultimately unworkable) by presenting an example of a system that offers a vast improvement over other existing schemes aimed at the enforcement of constitutional socio-economic rights.

Part I contrasts the South African system with other constitutional systems by briefly examining the constitutional structure of the United States, which provides for no explicit socio-economic rights, and that of Hungary, which explicitly provides for a large number of such rights. The analysis examines some of the more common criticisms received by both systems. Part II briefly outlines the South African constitutional arrangement and then moves into a description of the key elements of the Grootboom and TAC cases. Part III analyzes how the Court, by means of the constitutional system described in Part II, has navigated between the difficulties presented by the two options that are contrasted in Part I. The section demonstrates how the Court has created a "third way" of judicial enforceability of socio-economic rights that, due to the presence of self-imposed limits, promises a solution that is both sensible and workable.

a Historical Account of International Law and its Part in the South African Transformation

Kevin Hopkins

excerpted from:   Response to Apartheid: a Historical Account of International Law and its Part in the South African Transformation , 10 University of Miami International and Comparative Law Review 241-255, 250-255 (2001-2002) (35 Footnotes)

South Africa provides the world with a very useful analysis of a dispute that was managed at both the international level as well as at a municipal level. It is also true that the dispute itself occurred on both these levels--on the International level it is evident that South Africa's indifference to human rights norms during the apartheid era displayed an extreme disregard and disrespect for the developing doctrine of international law; whilst the municipal level is characterized by the legislative authorization of large- scale human rights violations.

South Africa's contribution to the development of international law during the apartheid era was enormous--albeit unintentional. New rules developed in response to apartheid, and customary international law evolved in opposition to racist state-policy. A resourceful body of human rights doctrine was born out of this period of tragic human misery.

There is little doubt that South Africa's new commitment to human rights is a direct result of the dynamic role played by the United Nations and the consistent pressure applied upon the apartheid government by the International Community. This much was acknowledged in October 1994 by South Africa's newly inaugurated President, Nelson Mandela, in his address to the General Assembly: "Historic change has come about not least because of the great efforts in which the United Nations engaged to ensure the suppression of the apartheid crime against humanity."

South Africa's discriminatory racial policy was raised in the very first session of the General Assembly, and has since occupied a central position on the agenda of the General Assembly for more than 40 years. Denise Prevost attributes this to the fact that South Africa, unlike other human rights violators at the time, was not part of a large voting block in the United Nations. For this reason it was unable to protect its own interests. She believes this made it possible for South Africa to serve as a test case for the development of the United Nations' policy on human rights.

India was the first State to challenge South Africa before the General Assembly on apartheid generally, but in particular on her treatment of people of Indian origin. South Africa's racial policy continued to enjoy debate in the General Assembly, and in 1952 a resolution was passed which effectively created the Commission on the Racial Situation in the Union of South Africa. The Commission was mandated to investigate and report upon South Africa's racial policies. Three reports were submitted to the General Assembly by the Commission, and all three criticized the discriminatory practices of the apartheid government. The General Assembly adopted the reports in resolutions to the effect that apartheid constituted a threat to peaceful relations between nations.

At first, the large Western powers supported South Africa's challenge to the competence of the United Nations to intervene in her domestic affairs. South Africa protested that apartheid was a domestic issue, and that for this reason, it fell outside the jurisdiction of the United Nations on account of the non- intervention principle contained in article 2(7) of the Charter. But this international support disappeared after the Sharpeville massacre in 1960, when many of the world powers were morally outraged and began to view South Africa's brutal implementation of apartheid as a threat to international peace and stability. As a result of the Sharpeville incident and South Africa's persistent refusal to seriously consider the repeated concerns of the General Assembly, the question of stronger action was referred to the Security Council in terms of article 11(2) of the Charter. The Security Council was quick to deplore South Africa's racial policies and practices but no binding enforcement action was taken against South Africa because this line of action was vetoed by the three Western powers that are permanent members of the Security Council.

Pressure continued to mount against South Africa, and South Africa continued to ignore and disregard the pronouncements of the United Nations. The call for sanctions increased and, in 1962 General Assembly Resolution 1761 (XVII) was adopted. It expressly condemned racial discrimination in South Africa and called for member States to: break all diplomatic ties with South Africa; forbid their ships from entering herports; boycott all South African goods and cease exporting to her; and refuse landing rights to South African aircraft. Although resolutions of the General Assembly, such as this one, are not binding on states, it nevertheless indicated that the International Community had voiced its strong dissent to apartheid.

This same resolution also created the Special Committee on Apartheid that was charged with the task of reviewing South Africa's policies. In 1967 the Special Committee was asked to promote the international campaign against apartheid. Although the Committee received a large amount of support in the General Assembly, the Security Council was rendered powerless because of the continued veto from France, Britain and the United States. Under the circumstances, the Committee sought to overcome the problem by targeting world public opinion directly. This action was directed chiefly at those states that had maintained political, economic or cultural relations with South Africa. This course of action proved to be fairly effective. It resulted in the mobilization of anti- apartheid NGO's, large-scale sports and cultural boycotts, and increased pressure on multinationals to disinvest from South Africa. In addition to this, the General Assembly consistently denounced South Africa's apartheid policy. This has led some commentators to suggest that a customary rule of international law was created by the General Assembly's consistent and frequent condemnation of apartheid in resolutions.

In light of the increasing number of General Assembly resolutions against it, South Africa changed her tactic somewhat by no longer claiming that article 2(7) was a bar to United Nations' competence, but rather claiming that the apartheid philosophy of "separate development" was in fact in line with international human rights law. South Africa contended that the creation of the Bantustan-homelands was in furtherance of the international practices promoting the right of all people to self-determination, as enshrined in the U.N. Charter. This justification was never taken seriously by the International Community because there was clearly no true commitment on South Africa's part to honor the values that underlie the philosophy behind self-determination. This was because Black people in South Africa had been stripped of their South African nationality against their will and forced to become citizens of fictitious homelands designed to "get them out of White-South Africa." In reality the homelands had become the dumping ground of Black African people. These people had not, by any stretch of the imagination, been permitted to "freely determine their political status" as is required by Resolution 1514 (XV)--the Declaration on the Granting of Independence to Colonial Countries and Peoples, or by Article 1(1) of the International Covenant on Civil and Political Rights.

Yet the question remains: Why were the three Western powers of France, Britain and the United States blocking action against South Africa in the Security Council? The answer seems to be based on political rather than moral criteria. To isolate South Africa would have been contrary to Western interests for two main reasons: first, South Africa played a vital role in resisting communism during the cold war and South Africa used the threat of communism in Africa to gain the support of the West; and second, although it was not a member of NATO, South Africa played an important part in the Western defense system, due to its strategic position.

Yet despite the apparent ineffectiveness of the Security Council, the General Assembly continued to increase its anti-apartheid sentiment. It did this in two ways. First, the General Assembly effectively expelled South Africa from its meetings in 1974. Secondly, it used its mandate under Article 13(1)(a) of the U.N. Charter to encourage the progressive development of international law. It did this by submitting a Draft Convention on the Suppression and Punishment of the Crime of Apartheid to the members of the United Nations for ratification. The Convention came into force on July 18, 1976, after twenty states had ratified it. There are currently 101 parties to the Convention. The Convention declares that "apartheid is a crime against humanity," and it criminalizes the principal features of apartheid, namely murder, torture, and arbitrary arrests of members of one particular race group. Parties to the Convention undertake to enact municipal legislation to prosecute persons responsible for the commission of this international crime. Some commentators have argued that the Convention is merely symbolic because as a crime against humanity, apartheid confers universal jurisdiction on all States.

The year 1977 seems to have been the turning point for South Africa. The death of Steve Biko in police custody was the last straw, and after this tragic event South Africa finally lost the support of France, Britain and the United States. The veto-power barrier to the application of Chapter VII had finally been crossed. In November of that year the Security Council passed a binding resolution mandating an arms embargo against South Africa. This was the only time that Chapter VII was ever invoked against South Africa. Security Council action under Chapter VI nevertheless continued throughout the 1980's. There were resolutions calling for the release of political prisoners, the granting of clemency to political prisoners facing execution, the lifting of the state of emergency, and an end to attacks on neighboring territories.

The end of the Cold War resulted in further loss of sympathy for South Africa because the threat of communism was no longer imminent, and South Africa's strategic location was no longer a reason to afford her protection from international isolation. Crippling sanctions against South Africa were more widely implemented, and eventually the international stranglehold of repeated cumulative action forced change upon South Africa. State President FW de Klerk made the decision to dismantle apartheid in February 1990.

. . .

Since the dissolution of apartheid, South Africa has transformed itself from a pariah state to a leader in African and world affairs. Diplomatic ties have been re-established with States that refused to have anything to do with South Africa during the apartheid era. The United Nations and International Community have once again welcomed South Africa into the world of global trade, finance, sport and culture. South Africa, in turn, has indicated her commitment to the values of the International Community by signing most of the principal human rights treaties.

Why the South African Constitution is better than the United States's Constitution

Mark S. Kende

 excerpted from:  Mark S. Kende, The South African Constitutional Court's Embrace of Socio-economic Rights: a Comparative Perspective, 6 Chapman Law Review 137 (Spring 2003)

One of the most common assumptions about the United States Constitution is that it protects negative rights. Yet the International Covenant on Economic, Social, and Cultural Rights, as well as many foreign constitutions, require governments to affirmatively provide socio-economic necessities. The theory is that liberty at least presumes subsistence.

International human rights experts actually speak of three "generations" of rights. First generation rights are political and civil, and are usually negative rights. Second generation rights involve the government's socio-economic obligations, and are frequently positive rights. Finally, third generation rights are exemplified by the right to a clean and healthy environment, and are commonly called "green" rights.

Cass Sunstein said that the South African Constitution is "the most admirable constitution in the history of the world." It contains a lengthy list of socio-economic rights, which the drafters hoped would protect and assist those disadvantaged by Apartheid and those who are poor and vulnerable. The relatively new South African Constitutional Court has required the government to implement these rights. Conversely, the United States Supreme Court has been unwilling to find socio-economic rights in the United States Constitution, in part because of separation of powers concerns.

This paper is divided into three parts. The first part describes some of the distinctive features of the South African Constitution, and compares these features with the United States Constitution. Part two discusses the South African socio-economic rights cases. Finally, part three critically examines American constitutional jurisprudence on socio-economic rights. This paper seeks to demonstrate that the South African Court has accomplished quite a feat: it has made clear that socio-economic rights are enforceable, but has interpreted economic rights in a way that limits separation of powers concerns. Moreover, this paper asserts that the United States Supreme Court should reconsider its separation of powers objections in light of these South African decisions.

II. Background of the South African Constitution

South Africa adopted its constitution in 1996. That year, the Constitutional Court issued the Second Certification Judgment, ruling that the Constitution complied with the thirty-four Constitutional Principles agreed upon in political negotiations that took place from 1991 to 1993. The new Constitution embodied the nation's transformation from a racist, brutal, Apartheid-based regime to a democratic, multi-cultural government. Both the Constitution's length and detail distinguish it from the United States Constitution.

The South African Constitution establishes a parliamentary structure for the national government and allocates powers to the provincial governments. It also creates a Constitutional Court with eleven Justices who are appointed to serve twelve-year non-renewable terms. The first group of Justices was impressive as it included an international war crimes prosecutor, several former law professors, and the attorney who founded the nation's leading civil rights litigation firm and represented President Nelson Mandela during his imprisonment.

The South African Constitution's Bill of Rights seeks to preserve and enhance human dignity, and substantive equality, by encompassing all three generations of rights previously discussed. Whereas the United States Supreme Court implies the existence of certain fundamental personal rights in the liberty provision of the Fourteenth Amendment's Due Process Clause (a legacy of Lochner v. New York), the South African Bill of Rights specifically enumerates these rights. Section 12 of the Bill of Rights addresses the "freedom and security of the person." This section specifically bans torture, cruel and inhumane treatment, general violence, detention without trial, and deprivation of freedom without just cause. It further provides that everyone has bodily and psychological integrity, including the right to make reproductive decisions. Section 14 encompasses the right to spatial privacy: privacy in one's home, of one's possessions, etc. Section 21 guarantees freedom of movement and residence. There is a lengthy equality provision in Section 9, Section 10 protects human dignity, and Section 11 says that everyone has a right to life.

The South African Bill of Rights also employs the flexible proportionality analysis used in the Canadian Charter of Rights and Freedoms and in Germany's Basic Law, rather than the tiers of scrutiny applied in United States constitutional jurisprudence. The first issue addressed in any South African rights case is whether there has been an infringement of one's constitutional rights. Interestingly, state action need not always be present. The next issue addressed is whether the Bill of Rights "Limitations" Clause justifies the infringement. Any limitation must be pursuant to a law of "general application." The Limitations Clause requires the Court to balance several factors, including the nature of the right, the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose, and the possibility of employing less restrictive alternatives. The Court's overall responsibility is to determine whether the infringement on the right is proportional to the resulting societal benefit. This method of rights analysis is more common internationally than the American use of different degrees of scrutiny.

An example of proportionality analysis can be found in the South African Constitutional Court case of Christian Education South Africa v. Minister of Education. In that case, a Christian school association, whose parental members believed in the Biblical maxim "spare the rod, spoil the child," challenged on religious freedom grounds a national law banning corporal punishment in schools. The Court assumed arguendo that the free exercise rights of the parents were infringed. The Court then had to determine whether the government limitation was constitutional.

The Court found that powerful justifications support the ban including international conventions and the South African Constitution, which outlaws any violence against children. The Court also explained that, under Apartheid, the schools used corporal punishment in a brutal, degrading, and racist manner. Although it acknowledged that the parents sincerely believed corporal punishment was a religious necessity, the Court held that the restriction on free exercise was not sufficiently burdensome because parents could still carry out corporal punishment at home. Because the law only prohibited corporal punishment at school, the Court held that it was an acceptable limitation on religious freedom.

Besides the Limitations Clause, the South African Bill of Rights has several other interesting provisions, such as interpretive instructions. One provision provides that courts should "promote the values that underlie an open and democratic society based on human dignity, equality and freedom." Courts are also supposed to construe legislation and the common law to promote the spirit of the Bill of Rights. Moreover, courts must consider international law in rendering decisions, and may also consider foreign law.

Furthermore, the South African Bill of Rights requires that the government undertake affirmative action programs. It also contains a provision regarding how the government can carry out property redistribution--an important provision given the land seizures carried out under Apartheid.

III. The South African Constitutional Court's Socio-Economic Rights Rulings

The South African Constitution's socio-economic rights provisions have been celebrated internationally. Yet some South African scholars, such as Dennis Davis, argued that they were unenforceable. These objections resemble the United States Supreme Court's reasoning in several cases discussed later. Socio-economic rights protected by the South African Constitution include rights to housing, health care, food, water, social security, and education, among others. Several cases have interpreted these provisions.

A. The Right to Housing

The seminal socio-economic rights case in South Africa is Government of the Republic of South Africa v. Grootboom, which involved the right to housing. Irene Grootboom was one of several hundred poor people, half of whom were children, who lived in an informal squatter settlement. The settlement lacked running water, electricity, sewage, and refuse removal services. Millions of South Africans still live in such conditions as a legacy of Apartheid's influx control policies and forcible relocations.

Because of these conditions, the group moved onto vacant private land earmarked for low-income housing. The group was trespassing, however, so the owner obtained an eviction order. The situation worsened when the local government bulldozed the group's shanties and then burned the wreckage before the date set for eviction. This occurred during a cold, windy, and rainy Western Cape winter.

The group moved to a nearby municipal sports field and erected flimsy temporary structures. Winter rains left them unprotected under plastic sheeting, and the municipality declined to provide any assistance. The group obtained legal counsel and brought suit charging that the government failed to comply with the right to housing. The Constitutional Court ruled for the settlers after applying chapter 2, section 26, of the South African Constitution, which states:


26. (1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.

Initially, the Court addressed whether socio-economic rights were justiciable by quoting from its First Certification Judgment:

"[T]hese rights are, at least to some extent, justiciable. As we have stated in the previous paragraph, many of the civil and political rights entrenched in the [constitutional text before this Court for certification in this case] will give rise to similar budgetary implications without compromising their justiciability. The fact that socio-economic rights will almost inevitably give rise to such implications does not seem to us to be a bar to their justiciability. At the very minimum, socio-economic rights can be negatively protected from improper invasion."

The Court then explained the importance of socio-economic rights:

Our Constitution entrenches both civil and political rights and social and economic rights. All the rights in our Bill of Rights are inter-related and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined in Chapter 2 [The Bill of Rights]. The realisation of these rights is also key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential.

The Court acknowledged that there is a nexus between the government meeting socio-economic needs and people exercising their civil and political rights. As South African scholar Pierre de Vos said, "Starving people may find it difficult to exercise their freedom of speech . . . ."

The Court then examined international human rights law, but rejected an approach in which the government would be required to provide a "minimum core" level of housing, health care, etc. in order to satisfy constitutional requirements. The Court noted that the "minimum core" concept lacked flexibility, and that the text of South Africa's socio-economic rights provisions differed from international covenants. The Court instead asserted that the key question was "whether the measures taken by the state to realise the right afforded by Section 26 are reasonable." The Court explained that "[t]he measures must establish a coherent public housing programme directed towards the progressive realisation of the right of access to adequate housing within the State's available means." The Court further stated that progressive realization meant that the government had "an obligation to move as expeditiously and effectively as possible towards that goal." The Court added that the program must be "reasonably implemented. An otherwise reasonable programme that is not implemented reasonably will not constitute compliance with the State's [positive] obligations."

The Court then held:

To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right. . . . If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.

This statement was significant because the Court was addressing the government's worthy efforts at constructing low-income housing. Nevertheless, the Grootboom group, and many others, could not obtain such housing for years given the backlog. The government simply had no policy to assist the homeless. The Court elaborated:

The nationwide housing programme falls short of obligations imposed upon national government to the extent that it fails to recognise that the State must provide relief for those in desperate need. They are not to be ignored in the interests of an overall programme focussed on medium and long- term objectives [rather than short term objectives]. It is essential that a reasonable part of the national housing budget be devoted to this, but the precise allocation is for national government to decide in the first instance.

This last sentence illustrates the Court's careful balancing act. Though the Court forced compliance with the Constitution, it gave the government discretion on how to comply with the law.

Grootboom demonstrates that placing socio-economic rights in a Constitution does not mean that every individual is entitled to assistance on demand. Instead, the Court analyzed whether the overall government policy was reasonable. Cass Sunstein said, "[w]hat the South African Constitutional Court has basically done is to adopt an administrative law model of socioeconomic rights."

B. The Right to Health Care

The South African Constitutional Court has decided two major health care cases: Soobramoney v. Minister of Health and Minister of Health v. Treatment Action Campaign. Chapter 2, section 27 of the Bill of Rights states:

Health care, food, water, and social security

27. (1) Everyone has the right to have access to --

(a) health care services, including reproductive health care;

(b) sufficient food and water; and

(c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

(3) No one may be refused emergency medical treatment.

1. Soobramoney v. Minister of Health

The first socio-economic rights case ever decided by the Constitutional Court was Soobramoney, not Grootboom. Soobramoney's ruling against the claimant made some commentators fear the Court would render the rights provisions toothless. Grootboom and Treatment Action Campaign have since alleviated that worry.

The issue in Soobramoney was whether a public hospital unconstitutionally failed to provide renal dialysis services to a terminally ill man who suffered from diabetes, ischemic heart disease, and cerebro-vascular disease. The hospital produced evidence that it prioritized treatment for non-terminal patients because dialysis was a scarce resource. Soobramoney brought suit claiming that the hospital's refusal to treat him violated his right to health care and to emergency medical treatment under chapter 2, section 27 of the Bill of Rights of the South African Constitution.

The Court initially recited the Constitution's fundamental principles:

We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.

The Court then rejected the claimant's "emergency" assertion. Relying on a case from India, the Court noted that claimant's chronic renal failure would require dialysis several times a week to prolong his life, but held: "This is not an emergency which calls for immediate remedial treatment. It is an ongoing state of affairs resulting from a deterioration of the applicant's renal function which is incurable."

The Court also rejected the claimant's argument that the hospital violated his right to health care by reasoning that the hospital had a rational policy for making a scarce resource available. The Court asserted that the dialysis program would collapse and"no one would benefit" in the absence of a prioritization policy. Moreover, the Court stated:

These choices involve difficult decisions to be taken at the political level in fixing the health budget, and at the functional level in deciding upon the priorities to be met. A court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters.

The ruling illustrates, once again, that a court can take socio-economic rights seriously and yet still respect separation of powers concerns and legislative competence.

2. Minister of Health v. Treatment Action Campaign

The recent decision in Treatment Action Campaign is among the most important Constitutional Court cases thus far, because it involved the South African government's unsatisfactory response to the AIDS pandemic that South Africa is currently experiencing. Indeed, one in nine South Africans is infected with HIV. In the year 2000 alone, 2.4 million Africans died of HIV related causes. More than 70,000 babies infected with HIV are born in South Africa each year due to mother-child transmission. One ray of hope is a drug called Nevirapine, which the World Health Organization ("WHO") says can prevent the spread of HIV/AIDS from pregnant women to their fetuses and babies.

Unfortunately, for several years the South African government refused to distribute Nevirapine at public health clinics. Initially, President Thabo Mbeki expressed skepticism about whether HIV causes AIDS. Then the government had cost concerns, which were unfounded because the manufacturer offered the pills for free. The government also claimed Nevirapine had potentially hazardous side effects. The WHO ultimately dispelled these concerns.

The government finally agreed to a pilot distribution program at two public health centers in each province. Government health officials said a broader program was not feasible since Nevirapine only worked when infected mothers used formula to feed their newborns. The government said that it lacked the capacity to insure that women all over the country used formula to feed their babies.

After years of unsuccessful lobbying, a South African AIDS advocacy group, the Treatment Action Campaign ("TAC"), brought suit charging that the government violated the Constitution's right to health care by not widely providing Nevirapine to pregnant women. The government responded that its pilot program was reasonable and that separation of powers required the courts to stay out of this issue.

Nevertheless, the Constitutional Court issued a unanimous opinion ordering the government to provide the free Nevirapine. Initially, the Court spoke of its standard of review:

Courts are ill-suited to adjudicate upon issues where court orders could have multiple social and economic consequences for the community. The Constitution contemplates rather a restrained and focused role for the courts, namely, to require the State to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation. Such determinations of reasonableness may in fact have budgetary implications, but are not in themselves directed at rearranging budgets. In this way the judicial, legislative and executive functions achieve appropriate constitutional balance.

The Court, nonetheless, defined the "progressive realization" obligation by noting that "[t]he State is obliged to take reasonable measures progressively to eliminate or reduce the large areas of severe deprivation that afflict our society." The Court then decided that the government inaction was not reasonable because it "fail[ed] to address the needs of mothers and their newborn children who do not have access to these [pilot] sites." The Court said the government's goal of maximizing Nevirapine's effectiveness by limiting its distribution to mothers trained in the use of baby formula did not justify refusing to distribute it beyond the pilot sites, because too many babies would become infected or die in the interim.

The Court also rejected the government's separation of powers defense by stating:

There is . . . no merit in the argument advanced on behalf of government that a distinction should be drawn between declaratory and mandatory orders against government. Even simple declaratory orders against government or organs of State can affect their policy and may well have budgetary implications. Government is constitutionally bound to give effect to such orders whether or not they affect its policy and has to find the resources to do so. Thus, in the Mpumalanga case, this Court set aside a provincial government's policy decision to terminate the payment of subsidies to certain schools and ordered that payments should continue for several months. Also, in the case of August the Court, in order to afford prisoners the right to vote, directed the Electoral Commission to alter its election policy, planning and regulations, with manifest cost implications.

But the Court showed respect for separation of powers by asserting that it would be for the "government . . . to devise and implement a more comprehensive policy that will give access to health care services to HIV- positive mothers and their newborn children, and will include the administration of Nevirapine where that is appropriate." The Court supported its remedial authority by citing cases from India, Germany, Canada, and the United Kingdom. The decision in Treatment Action Campaign even relied on the United State Supreme Court's decision in Brown v. Board of Education II.

In sum, as Heinz Klug pointed out, Treatment Action Campaign goes beyond Grootboom because Treatment Action Campaign's directive to the government was quite specific. The government is now complying and many young lives will likely be saved.

IV. Critique of the United States Supreme Court's Socio-Economic Rights Decisions

Comparing South African Constitutional Court and United States Supreme Court decisions on socio-economic rights is difficult because these courts are the products of different societies, cultures, and political and legal systems. One obvious difference is that the United States Constitution lacks explicit socio-economic rights. This helps explain why the Supreme Court rejects such claims. In Lindsey v. Normet, the Court said: "We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill." The first part of this section looks at Supreme Court decisions related to socio- economic rights. The second part relies on the above-mentioned South African cases to show the flawed nature of the Supreme Court's doubts about the judiciary's competence to enforce such rights.

A. The United States Supreme Court on Socio-Economic Rights

The United States Supreme Court has rejected socio-economic rights claims in cases with varying facts and legal grounding. In Dandridge v. Williams, the Court ruled that Maryland did not violate equal protection by imposing a $250 cap on welfare benefits, regardless of family size. The Court held that the cap was rationally related to the state's interests in preserving scarce resources, and in creating incentives for the poor to seek employment and to engage in family planning. In San Antonio Independent School District v. Rodriguez, the Court ruled that Texas' public education financing scheme was consistent with equal protection and substantive due process, despite dramatic school district disparities in per student funding. The Court said the law burdened neither a suspect class nor a fundamental right. Additionally, in Harris v. McRae, the Court ruled that a federal health care program that omitted financial coverage for abortions, even when the pregnancy endangered the woman's health, did not violate substantive due process.

To be fair, strong dissents were authored in these cases. Moreover, the Court has upheld socio-economic rights in a few circumstances. In Shapiro v. Thompson, the Court ruled that a durational residency requirement for welfare recipients discriminated against a person's fundamental right to travel. This was a hybrid case that implicated what has been called "equal protection fundamental interests." More recently, in Saenz v. Roe, the Court issued a similar ruling regarding welfare payments, but held that the right to travel was based on the Fourteenth Amendment's Privileges and Immunities Clause. This travel issue was not present in Dandridge.

In Plyler v. Doe, the Court ruled unconstitutional a Texas law that required illegal alien children to pay to attend public schools. Though neither a suspect class nor fundamental right was implicated, the Court asserted that the law revealed an irrational animus towards a vulnerable group not responsible for its situation. This was a surprising result in light of Rodriguez. One distinction was that in Rodriguez the law provided students with a minimum education, whereas in Plyler certain students were denied any education unless they paid for it themselves.

To sum up, the Supreme Court has rejected socio-economic rights claims under both Substantive Due Process and Equal Protection doctrines. The Court, nonetheless, has been more receptive regarding hybrid "equal protection fundamental interests" claims. But even then, the Court has tried to find a hook, such as the right to travel or the right to vote.

B. Socio-Economic Rights and Separation of Powers: Two Approaches

The United States Supreme Court has raised separation of powers objections to socio-economic rights. This paper responds to these objections. Of course, scholars such as Frank Michelman, Peter Edelman, Mark Tushnet, and Charles Black have challenged the United States Supreme Court's socio-economic rights decisions based on their respective views of the Fourteenth Amendment. This paper leaves the Fourteenth Amendment questions for a later day, however, because the South African cases shed light on separation of powers issues, but not on the peculiarities of American substantive due process or the Privileges and Immunities Clause. Moreover, Fourteenth Amendment theory becomes less important regarding socio- economic rights if pragmatic separation of powers objections cannot even be overcome.

The Supreme Court has raised three separation of powers concerns. First, the legislature, not courts, should make socio-economic funding allocations. Second, the judiciary lacks the competence to make such decisions. Third, separation of powers problems are minimized if the Constitution encompasses negative rights. The South African cases address these concerns.

1. The Legislature's Prerogative

The Supreme Court has made clear the legislative and executive branches should resolve socio-economic rights issues. In Dandridge, the Court said "the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients." The Court added that the "problems presented by public welfare assistance programs are not the business of this Court." In Lindsey v. Normet, the Court upheld Oregon's summary eviction procedures holding: "Absent constitutional mandate, the assurance of adequate housing and the definition of landlord tenant relationships are legislative, not judicial, functions."

The majority in Rodriguez said that it lacked the "authority" to intervene regarding school financing decisions because it would then be a "super-legislature." This objection resembles Justice Holmes's famous dissent in Lochner. The Rodriguez opinion also asserted that educational decisions should be left to government entities with expertise regarding local political and economic conditions. Finally, in Harris, the Court said, "Whether freedom of choice that is constitutionally protected warrants federal subsidization is a question for Congress to answer, not a matter of constitutional entitlement."

The South African cases, however, demonstrate that the judiciary can enforce socio-economic rights without intruding into quintessentially legislative or executive functions. In Soobramoney, Grootboom, and Treatment Action Campaign, the Constitutional Court asserted that it would uphold government socio- economic policies so long as they were reasonable. This is a pro-government presumption. The government only lost in Grootboom and Treatment Action Campaign because it had essentially no plan for assisting people in difficult circumstances. Moreover, the Court's rejection of "minimum core" obligations in Grootboom and Treatment Action Campaign provides the government with flexibility in dealing with multiple social problems.

Finally, Grootboom demonstrates that a court can issue a powerful remedial order that still gives the legislature latitude on implementation. Mark Tushnet called this an "action-forcing remed[y]." In the context of employment rights, Tushnet said that, "enforcement [of an order that the legislature offers plans for relief] could guarantee that legislatures make jobs policy a high or higher priority." Frank Michelman said this remedy involved "a judicial mandate to legislative, executive, or administrative officers to prepare, submit, and carry out a corrective plan."

Michelman further confirmed that Grootboom "does not as it stands seem shockingly pre-emptive of legislative and executive policy choice." Other commentators have suggested that Grootboom did not go far enough. In my view, the Constitutional Court performed an impressive high wire act in Grootboom by vindicating the right to housing while preserving separation of powers. The Constitutional Court accomplished what the United States Supreme Court has said courts cannot do.

2. Competence

The United States Supreme Court has also questioned the judiciary's ability to make budgetary decisions. In Dandridge, the Court labeled such issues "intractable." In Rodriguez, the Court said the judiciary lacked the "competence" to evaluate education-funding levels. The Rodriguez Court also invoked "our federalism" by saying that the Court did not possess "the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues." The Court added that its "lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels." The Supreme Court's concerns are overstated. Grootboom's action-forcing remedy allows the legislature or local entities to wrestle with implementation despite the court's intervention. Moreover, judicial intervention is justified when the other branches violate the Constitution.

Charles Black's interesting 1997 book, A New Birth of Freedom, explains why lack of competency is not a valid defense against judicial action:

About half our black children under six live in poverty, which very commonly entails malnutrition. Some helpless old people have been known to eat dog food when they could get it; it is not recorded that any Cabinet member has yet tried this out on elderly persons in his own extended family. Now you can bog down in a discussion about the exact perimeter of "decent livelihood," or you can cease for a moment from that commonly diversionary tactic and note that, wherever the penumbra may be, malnourished people are not enjoying a decent livelihood. In a constitutional universe admitting serious attention to the Declaration of Independence, a malnourished child is not enjoying a "right to the pursuit of happiness."

3. Negative Rights

Another concern related to separation of powers is that the American constitutional tradition presumes that courts have an easier time enforcing negative political and civil rights rather than positive socio-economic rights. It seems simpler for a court to order the government to stop interfering with speech than for a court to determine how much funding is needed for secondary education.

This reasoning has two problems. First, it is an oversimplification. In the First Certification Judgment, as well as in Grootboom and Treatment Action Campaign, the Constitutional Court said that protecting socio-economic rights sometimes requires the Court to negate government actions that interfere with a right. Thus, in Treatment Action Campaign, as Frank Michelman has pointed out, the Constitutional Court found that the government unconstitutionally interfered with the right of public doctors to distribute Nevirapine. This "negative" role regarding socio-economic rights is little different from the "negative" role United States courts play when vindicating political rights.

Second, Mark Tushnet, Cass Sunstein, and others have established that enforcing negative rights also implicates budgetary matters. Sunstein wrote that:

Even conventional individual rights, like the right to free speech and private property, require governmental action. Private property cannot exist without a governmental apparatus, ready and able to secure people's holdings as such. So-called negative rights are emphatically positive rights. In fact all rights, even the most conventional, have costs. Rights of property and contract, as well as rights of free speech and religious liberty, need significant taxpayer support.

The First Certification Judgment is in accord with Sunstein, as quoted above. American philosopher Henry Shue wrote that courts enforcing positive socio-economic rights are not performing a task "more difficult, more expensive, less practicable, or harder to 'deliver"' than protecting negative rights. The United States Supreme Court's intrusive efforts to implement a remedy against segregation in Brown v. Board of Education II illustrate this starkly.

4. New Results

The South African cases discussed above reveal how the United States Supreme Court could have decided certain socio-economic rights cases. The Court in Dandridge did not have to resolve "intractable" welfare budgeting questions. The Court could have ordered the government to develop a more equitable funding rule that took into account family size, which would ensure that children in bigger families would not be severely deprived.

Similarly, in Rodriguez, the Court could have ruled against the Texas financing scheme but left the state to devise an equitable alternative, subject to the Court's guidelines. Numerous state courts have invalidated school financing schemes. The Supreme Court mistakenly assumed that it had to "direct the States either to alter drastically the present system or to throw out the property tax altogether in favor of some other form of taxation." The South African cases suggest the remedy need not be so intrusive and inflexible.

Moreover, the Supreme Court could have ruled for the plaintiff in Harris by simply requiring the government to ensure that the health service was provided to these women, just as in Treatment Action Campaign.

It is also worth noting that the Supreme Court decisions in Shapiro, Plyler, and the "new property" entitlement case, Goldberg v. Kelly, as well as the eloquent Dandridge and Rodriguez dissents, demonstrate that the Court can address socio-economic rights issues.

5. The Reaction

One possible reaction to the aforementioned arguments is that the current United States Supreme Court will not be endorsing socio-economic rights anytime soon. Indeed, Lawrence Lessig essentially suggested at a 1997 Fordham Law School constitutional law conference that Frank Michelman's welfare rights theories make Michelman look like a dreamer today, given the evolution of the Supreme Court's jurisprudence.

Nevertheless, the South African cases illustrate that courts, acting cautiously, can enforce such rights without destroying separation of powers or taxing judicial competency. Once these false concerns are eliminated, the more foundational issues about interpreting the Fourteenth Amendment, and perhaps the Ninth Amendment, can be addressed sensibly.

Moreover, two United States Supreme Court decisions have shown that the Court has the potential to approach socio-economic rights cases in the same manner as the South African judiciary. These two cases are Atkins v. Virginia and Romer v. Evans.

a. Atkins v. Virginia

In Atkins, the Court ruled that the state could not constitutionally execute a mentally retarded person. Atkins, which was decided last term, reversed the thirteen-year-old decision in Penry v. Lynaugh. Atkins relied on the fact that fourteen states had eliminated the death penalty for the mentally retarded since Penry was decided. The majority also noted that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." Much to the chagrin of Chief Justice Rehnquist and Justice Scalia, the majority relied on a brief from the European Union for support.

Atkins demonstrates that the Court no longer ignores international norms. Moreover, Justice Breyer has a history of examining foreign precedents in his opinions. That is exactly what the South African Constitutional Court has been doing since its founding. If applied more frequently, this approach could lead the Court to rely on international norms in other areas, such as socio-economic rights.

b. Romer v. Evans

The majority in Romer also adopted a South African style approach. The Court ruled that Colorado violated equal protection when its citizens enacted, by referendum, a state constitutional amendment removing all anti-discrimination protections for homosexuals. The Court held that the amendment was based on animosity towards homosexuals and therefore failed rational basis review.

The Court's analytical starting point was significant. The Court rejected the argument that Colorado had the legal right to repeal statutory protections it enacted. Instead, the Court assumed Colorado had a positive constitutional obligation to continue protecting all of its citizens--including homosexuals. The South African Constitution embraces just this kind of positive constitutional obligation.

As Kimberl´┐Ż Crenshaw and Gary Peller noted, "The majority's construction of a baseline of general protection against discrimination for everyone is based on an outright reversal of the common law construction." Louis Seidman said, "Romer seems to impose an affirmative constitutional requirement on jurisdictions to protect gay people from private discrimination, at least so long as they maintain comprehensive protection for other groups." Seidman asserted that Romer would have "potentially far-reaching consequences," particularly in its use of a heightened form of rational basis review. Jefferson Powell said that Romer's recognition that the government has affirmative duties to protect citizens is consistent with longstanding equal protection doctrine.

Moreover, Romer is not unique. There is case law from the anti-Lochner, post economic substantive due process era, which assumed government has affirmative obligations. For example, in West Coast Hotel v. Parrish, the Court suggested that if the government lacked a minimum wage law, taxpayers would have to help more destitute people, which would essentially amount to a subsidy for low paying businesses.

Romer's view that the government has an affirmative duty to aid subordinated groups, and Atkins' reliance on international norms, sound more like South African Constitutional Court decisions than like the United States Supreme Court's decisions in Dandridge, Rodriguez, and Harris.

V. Conclusion

The United States Constitution is the oldest written nation-governing charter in the world. Many Americans probably assume it is the best constitution possible. Yet perhaps it is time that we Americans become less self-centered. Many countries, like South Africa, have adopted truly modern constitutions. These documents typically contain a comprehensible, detailed list of enumerated rights based on generally accepted international human rights norms, unlike the United States Constitution. The judiciary in these countries has been entrusted with interpreting these new provisions. The United States Supreme Court and American scholars could learn much from the South African Constitutional Court's socio-economic decisions. Now seems like a particularly good time for the Court to open itself to well reasoned foreign jurisprudential approaches.

[a1]. Professor of Law and Associate Dean, The University of Montana School of Law. B.A., Yale University; J.D., University of Chicago Law School.

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