THE ROLE PLAYED BY THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION'S ECONOMIC AND SOCIAL RIGHTS IN GOOD GOVERNANCE IN SOUTH AFRICA
SUMMARY
The preamble of the Constitution of South Africa, 1996 (the Constitution) contains the commitment to, amongst other things, establish a society based on democratic values, social justice and fundamental human rights, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law and improve the quality of life of all citizens and free the potential of each person. One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Chapter 2 Bill of Rights.
Despite numerous debates surrounding the issue of enforceability of socio-economic rights, it has become evident that these rights are indeed enforceable. Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable.
The fact that socio-economic rights have been included in the Bill of Rights and are enforceable is, however, not sufficient to achieve the aims set out in the preamble. In order for these rights to be of any value to the people they seek to protect, they need to be implemented. One of the ways in which the implementation of these rights is monitored is by means of the South African Human Rights Commission's annual Economic and Social Rights Reports. The aim of this contribution is to assess these reports and to establish the degree to which they contribute to good governance in South Africa with reference to, inter alia, the constitutional mandate of the South African Human Rights Commission, the reporting procedure and the evaluation of reports.
- Introduction
The preamble of the South African Constitution1 contains the commitment to, amongst other things, establish a society based on democratic values, social justice and fundamental human rights, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law and improve the quality of life of all citizens and free the potential of each person. One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Bill of Rights.2
Despite numerous debates surrounding the issue of enforceability of socio-economic rights, it has become evident that these rights are indeed enforceable. Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable.3
- 2 The constitutional mandate of the South African Human Rights Commission
The Constitution establishes a number of institutions to help ensure that the rights in the Constitution become reality, one of these institutions being the South African Human Rights Commission.7 These institutions, referred to as Chapter 9 institutions,8 are independent organs with the general mandate of strengthening constitutional democracy in South Africa.9 They are independent, subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.10 These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.11 Such national human rights institutions have, according to the Committee on Economic, Social and Cultural Rights, a potentially crucial role to play in promoting and ensuring the indivisibility and interdependence of all human rights and it is, therefore, essential that full attention be given to economic, social and cultural rights in all of the relevant activities of these institutions.12
The SAHRC has a general mandate to monitor and assess the realisation of all human rights13 as well as a special mandate in relation to socio-economic rights.14 This additional role of the SAHRC is of great importance given South Africa's history of racial discrimination which has resulted in many South Africans suffering from socio-economic disadvantages.15 This special mandate requires of the SAHRC, each year, to require relevant organs of state to provide it with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing,16 health care,17 food,18 water,19 social security,20 education21 and the environment.22Although this special mandate merely requires of the SAHRC to require the organs of state to provide information, it would be pointless if left at that. In terms of its general mandate, it would thus appear that it is required of the SAHRC to use this information in order to monitor and assess the realisation of the rights in question.
The way in which the SAHRC fulfils this function is by means of its Economic and Social Rights Reports. In these reports the SAHRC not only monitors the legislation and policies which have been adopted to realise these rights, but also the budget allocated towards realising them and the actual results of the measures.27
- At one point the SAHRC officially informed the Minister of Finance that it would be unable to carry out its functions relating to certain statutory mandates and the section 184(3) requirement for annual reporting on social and economic rights.55 Where a monitoring body such as the SAHRC does not have sufficient resources at its disposal, it is not able to obtain all information that could be available.56 Allowing NGO and civil society participation at an earlier stage of the process could provide the SAHRC with additional information and experience, free of charge. There are many well-funded and highly specialised NGO's in South Africa which could make an invaluable contribution to the reports and, consequently, to the promotion of the realisation of socio-economic rights in this country.57
When responding to the SAHRC's protocols, government departments would obviously not want to encourage criticism of themselves and would consequently not want to highlight the kind of information that would reveal socio-economic rights violations. 76
- The role of the SAHRC's reports in the promotion of good governanceThe concept of good governance is increasingly being accepted as the standard for domestic governance.81 According to Mafunisa,82 governance includes the exercise of political power for directing and regulating socio-economic affairs. Although no generally accepted definition of good governance exists, it can be broadly defined as the responsible use of political authority to manage a nation's affairs.83 It is understood to consist of various components, including ensuring the rule of law (and in the South African context, obviously, ensuring that governance complies with the Constitution), improving the efficiency and accountability of the public sector, tackling corruption, effectively protecting human rights and allowing for participation by the people in such governance.84 The public needs to be able to participate, not only through elected representatives (parliament) and non-elected actors (political parties and public interest groups), but also directly.85 Public accountability, according to Hilliard and Kemp,86implies that public functionaries have to provide explanations to justify positive or negative results obtained in the performance of their daily activities. Good governance must be both substantive and procedural.87 In other words, it must exist not only in respect of aims and results, but also in respect of procedures and is of little use if it is not accompanied by socio-economic progress.88 It needs to have a strong preventive aspect, giving society sound structures for economic and social development.89
www.greenfactorbrands.blogspot.co.za/2016/03/nuclear-power-is-not-quick-fix-solution.htmlhttp://www.puk.ac.za/opencms/export/PUK/html/fakulteite/regte/per/issuepages/2006Volume9no2/2006x2x_Horsten_art.pdf
