The legal implications of South Africa’s entrenched socio-economic rights framework

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RATIONALE AND BACKGROUND

I argue in this thesis that a political approach to human rights which regards political action as counterpart of socio-economic rights in poverty related struggles either in the creation of new socio-economic rights norms or the enforcement of existing ones holds the best promise for the transformation of socio-economic rights for a more effective poverty reduction in contemporary Africa. Having regard also to the potential impact of courts’ interpretive role and function underpinned by particular understandings of democracy in either constraining or enlarging the space for citizens’ action in constitutional democracies like that of South Africa and Nigeria, I argue also that a judicial conception of democracy that is rooted in African political philosophy is the conception that is more likely to promote the necessary space for political empowerment of the poor and consequent redistribution of wealth in African states through effective transformation of socio-economic rights. I, therefore, in this thesis identify and analyse the existing conceptions of democracy of South African and Nigerian courts through the examination of relevant cases from both jurisdictions. I also examine the likely impact of both courts’ conception of democracy on poverty-related struggles and political action in both countries through the analysis of relevant socio-economic rights related political action cases. Finally, I articulate an African conception of democracy, the WABIA model/understanding of democracy, which is based on African political theories as can be deduced from historical and anthropological evidence as well as from African philosophical literature, as the conception that is more likely to enlarge the space for political action and empowerment of the poor.

THESIS OF STUDY

The main thesis of this study is therefore that taking a historical view of the matter, a political/resistance approach to the transformation of socio-economic rights appears to be the most feasible approach to political and socio-economic empowerment of the poor and vulnerable. And that having regard to the real likelihood and impact of courts’ interpretive work in either constraining or enlarging the space for struggle and action in constitutional democracies, a judicial conception of democracy rooted in African political philosophy is the mechanism that appears more likely to provide the necessary space for political empowerment of the poor through poverty related struggle, participation and action to compel more equitable redistribution of wealth through effective transformation of socioeconomic rights.

OBJECTIVES OF STUDY AND RESEARCH QUESTIONS

A political approach to human rights implicates and brings very sharply into focus the relationship between human rights and democracy.45 This is so because ‘…both political participation and the protection of human rights are part of the definition of democracy.’ 46 Thus, a number of scholars have established strong linkages between democracy and human rights on the one hand, and political stability and socio-economic progress on the other.47 This, however, may be a rather idealistic or too benevolent view of modern democracy. A more critical examination of the practice of modern democracy reveals rather a catalogue of exclusionary practices and systems of government that serve the interest of the materially advantaged.

This appears to be more so the case in Africa.48 According to Ake, the pure form of democracy as practiced in ancient Athens was appropriated by the European bourgeois class, trivialised into its present representative form and redefined to suit bourgeois class interest.49 And it is within this trivialised and diluted form of democracy that Africa is democratising.50 Ake therefore rejected the imposition of this form of democracy on Africa because it is opposed to and incapable of meeting the political needs and basic economic expectation of the masses in Africa. He therefore called for the ‘…deepening of the democratic experience in every sphere.

Law

The difficulties and challenges inherent in defining the term ‘law’ is well illustrated by Dworkin who in one of his treatises was hard put to proffer a precise definition or description of law but instead undertook a rather long enquiry into different perspectives and arguments about the concept of law and concludes that law lies in interpretation.55 There is actually no widely accepted definition or description of the concept of the term ‘law’ as ‘…the controversy on the word “law” itself is not just about semantics but, very often, disguises attitudinal and ideological differences among the different proponents’.56 The term law has therefore been variously defined by legal theorists57 and jurists alike58 according to their various persuasions.59 Thus, the positivists defined law in terms of the trinity of sovereign, command and sanction. Accordingly, Austin defined law as a command of a sovereign (which could be a person or a group of persons) directed at subjects exhibiting habitual obedience to the sovereign’s commands as a result of threat or certainty of sanction in cases of non-compliance.60 On their part, the natural law theorists defined law in terms of moral or ethical imperatives, emphasising the role of human reason in the enterprise of law. Thus, according to Aquinas law is nothing else ‘…than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.

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Politics/political action

There is also no universally accepted definition of politics. As stated by Ayeni-Akeke, ‘[n]o definition of politics, the subject-matter of political science, which is accepted by everybody as correct, comprehensive and adequate exists.’ 72 Ayeni-Akeke, however, identified five major conceptions of politics by theorists.73 First, is the conception of politics as activities related to the organisation of an organised human community to facilitate conditions for the satisfaction of human needs and realisation of full human potentials. The second conception of politics views it as the mechanisms for exercise of power and influence. Third, politics is also conceived by theorists as activities by which valuable scarce societal resources and values are distributed or allocated among members of a society. The fourth conception of politics owes its origin to the Marxist theorists. This school of thought conceives politics as the ‘struggles between social classes to capture and exercise the powers of state’.74 The fifth conception of politics conceive it as locus of continuing disagreements, contestations and disputes among members of a political community regarding societal goals and methods or routes to achieving those goals.

TABLE OF CONTENTS :

TITLE PAGE
DECLARATION
DEDICATION
ACKNOWLEDGEMENTS
SUMMARY OF THESIS
TABLE OF CASES
LIST OF TREATIES AND INSTRUMENTS
TABLE OF CONTENTS
CHAPTER ONE: INTRODUCTION
- 1. Rationale and background
- 1.1 Thesis of study
- 1.2 Statement of problem
- 1.3 Objectives of study and research questions
- 1.4 Clarification of concepts
- 1.5 Outline of chapters
- 1.6 Limitations of study
CHAPTER TWO: POLITICAL ACTION AND CONSTITUTIONAL FRAMEWORKS FOR SOCIO-ECONOMIC RIGHTS PROTECTION: SOUTH AFRICA AND NIGERIA
- 2. Introduction
- 2.1 Constitutional framework for the protection of socio-economic rights in South Africa
- 2.1.1 The legal implications of South Africa’s entrenched socio-economic rights framework
- 2.2 Constitutional framework for the protection of socio-economic rights in Nigeria
- 2.2.1 The legal implications of Nigeria’s a non-justiciable socio-economic rights framework
- 2.3 Pertinent features of examined frameworks and potential to further or hinder politics
- 2.3.1 Pertinent features of South Africa’s entrenched socio-economic rights regime and
- potentials for politics
- 2.3.2 Pertinent features of Nigeria’s directive principles and potential for politics
- 2.4 Conclusion
CHAPTER THREE: A JUDICIAL UNDERSTANDING OF DEMOCRACY
- APPRORIATE FOR POLITICAL ACTION IN CONTEMPORARY AFRICA
- 3. Introduction
- 3.1 Conceptions/models of democracy noticeable from democratic discourse
- 3.1.1 Direct democracy
- 3.1.2 Liberal/Representative democracy
- 3.1.3 Participatory democracy
- 3.1.4 Constitutional democracy
- 3.1.5 Deliberative democracy
- 3.1.6 Radical democracy
- 3.2 Perspectives of some African political theorists
- 3.2.1 The African humanist theory of Kenneth Kaunda
- 3.2.2 Ujaama: African socialism thesis of Julius Nyerere
- 3.2.3 Leopold Senghor’s Negritude
- 3.2.4 Kwameh Nkrumah’s philosophical consciencism
- 3.3 The nature of bourgeois liberal democracy in contemporary Africa
- 3.4 Factors responsible for the parlous state of bourgeois liberal democracy in Africa
- 3.5 Traditional African political systems and theories
- 3.5.1 The ancient kingdom of Oyo
- 3.5.2 Pre-colonial Igbo political system
- 3.6 Changes wrought by colonialism on Africa’s traditional system of government
- 3.7 Appropriate judicial conception of democracy for political action in Africa
- 3.8 Conclusion
CHAPTER FOUR: JUIDICIAL UNDERSTANDING OF DEMOCRACY IN SOUTH AFRICA AND NIGERIA: IMPLICATIONS FOR POLITICAL ACTION
- 4. Introduction
- 4.1 South African courts’ understanding of democracy
- 4.1.1 Borderline cases
- 4.1.2 Right to political participation
- 4.1.3 Freedom of expression
- 4.2 Nigerian courts’ conceptions of democracy
- 4.2.1 Locus standi cases
- 4.2.2 Right to political participation
- 4.2.3 Cases on the rights to freedom of association and assembly
- 4.2.4 Cases on the right to freedom of expression
- 4.2.5 Cases on impeachment/removal of political office holders
- 4.2.6 Socio-economic rights in Chapter II of the Nigerian Constitution cases
- 4.3 Conclusion
CHAPTER FIVE: THE IMPLICATION OF SOUTH AFRICAN AND NIGERIAN COURTS’ CONCEPTION OF DEMOCRACY ON SOCIO-ECONOMIC RIGHTS TRANSFORMATION
- 5. Introduction
- 5.1 The complementary role of law and politics in socio-economic rights transformation
- 5.2 South African courts’ conception of democracy in selected socio-economic rights cases and its impact on political action
- 5.3 Nigerian courts’ conceptions of democracy in selected socio-economic rights cases and its impact on political action
- 5.3.1 The struggle against removal of fuel subsidy
- 5.3.2 Struggle against opaqueness, corruption and abuse of office in governance
- 5.4 Analysis of the comparison between South Africa and Nigeria
- 5.5 The difference the WABIA model of democracy is likely to make
- 5.6 Conclusion
CHAPTER SIX: CONCLUSION
- 6. Introduction
- 6.1 Synopsis of conclusions
- 6.2 Concluding remarks
- 6.3 Tentative proposals
- BIBLIOGRAPHY