The Constitution - taking bold steps forward (hopefully)

Another musing on my work here. The Constitution of South Africa (1996) was a feat. After years of discrimination and inequity and a few additional years under an interim constitution, the Constitution of South Africa sought to do many things, but most importantly, at least in my work here, was to ensure a more equitable society. Really, I have been focusing on the Bill of Rights, only one small part of the Constitution, much like our Charter, which makes up only a small portion of our Constitution, but really, only that and division of powers are what we lawyers seem to care about (see, paid attention in second year). The South African Constitution is one of the most progressive constitutions in the world. Influenced by the constitutions of Germany, India, Namibia and Canada, the Constitution really brought together so many groups in South Africa. I think one of the things that I have really had to wrap my head around and, I have to admit, have had a bit of difficulty with, is the inclusion of economic rights. Now, my difficulties with this are clearly because, in Canada, we do not protect economic rights through our Charter. Although many of us believe in the provision of social services in order to help those less fortunate than ourselves, there is no 'right' per se to these types of services; in South Africa, it's different. The language used in the Bill of Rights, for some rights, echoes Canadian constitutional language (the right to life, security of the person, freedom of thought and religion), but it is in the economic guarantees that my work at the LRC tends to focus on. People in South Africa are guaranteed the right to food and water, to health care, to social assistance, the right to adequate housing, to a healthy environment, to property and the right to an education. Some of these rights are limited by the principle of 'progressive realisation' recognizing that the state will not be in a position to immediately provide all of these 'positive rights', but that limitation has not provided the government an easy escape from the provision of services linked to these rights, rather the Constitutional Court seems to have been, in my opinion, fairly reasonable (at least in most cases) in regards to this limit. So, in our work, many of our clients face issues in regards to these economic rights, in particular issues with adequate housing and healthy environments. I've really struggled at moments to understand what these rights entail, because, as opposed to most Charter rights, these are positive rights (the right to...) rather than negative rights (the right to be free from...) and, at least to me, defining the boundaries of negative rights is much easier and more obvious than defining the boundaries of positive rights. If we all have the right to adequate housing - what does this mean? Must the government provide a house for every person in South Africa? What does adequate mean? Is it a moving target? If we all have a right to health care - what does this mean? What is health care? What is the standard of health care that we have a right to? Does it include this prescription or that procedure? Clearly boundaries are available, and the logical process is that the government first determines these boundaries and only if these decisions are challenged does the court get involved. But, I still think this is more difficult to decipher than the negative rights that I have become versed in back home. As many of you know, my legal interest have tended to focus in the area of health and the concept of a right to health care is a very interesting one to me. Partly this is because, in Canada, although we do not have a 'right' to health care, under the Canada Health Act we have created, in essence, a pseudo right to health care. The Act requires that provinces provide universal coverage for all medically necessary hospital and physician services. Although this is the letter of the law, the debate of what is 'medically necessary' and what are 'hospital and physician services' has been going on for the 27 years since the Act came into being (almost my entire life time). But for some reason, at least in my mind, there is something different here in South Africa. I'm not sure if it is the distinction between an "in essence" right and a constitutionally protected right. Or maybe it is because Canada is a country that has the financial capabilities to deal with the provision of these services and South Africa, at least my impression of South African finances, does not have that same capability. Or maybe it is the reality that many of the health issues that are facing South Africa, including the epidemics of Aids and TB, are beyond what even a system as advanced as Canada could easily handle. I don't know what it is, but I have a hard time wrapping my mind around a right to health care. In theory, I am drawn to it; I support it. But, my legal mind has trouble grasping such a right. The right to adequate housing is even more difficult for my very Canadian and westernized brain. Mainly, because I cannot equate it with anything that I know. It is an economic right through and through and, although we provide social services (whether adequate or not, I will leave that to you), the existence of a right to these types of services is something that is difficult for me to grasp. Luckily, the Office for the High Commissioner on Human Rights (a UN body) has been there to help people like me out. I should note, that although it is not something we discuss at home, apparently we all have the right to adequate housing under the right to an adequate standard of living under the 1948 Universal Declaration of Human Rights, but in Canada this right I feel like it just isn't the same as a constitutionally protected right (we can argue about the international law implications later, just observing at this moment). Apparently my conception of the right is pretty narrow, and actually completely wrong. Apparently the right includes both freedoms and entitlements (there goes my distinction of positive and negative rights). Apparently, the primary freedom included is protection from forced eviction (this, in my work here, has become something that I have had to learn a great deal about). The entitlements: security of tenure, housing, land and property restitution, non-discriminatory access to housing; and participation in housing-related decision-making. So, at this point, it's making a little more sense. It's not that states must provide housing to everyone, it's that certain protections and such need to be in place. Ok. But, the OCHCR isn't the South African Constitutional Court and therefore although pointing me in a direction, I've also realised its not necessarily the right direction. In South Africa, the right to adequate housing, under the Constitution, obliges the state (including municipalities) to take positive and sustainable actions to meet the needs of those living in extreme conditions of poverty, homelessness or intolerable housing. The 'adequate' part of the right is that there must be a provision of land, services (including water and sewage services) and a dwelling. The ConCourt did recognize that the right is qualified, that it is a right subject to the principle of 'progressive realisation' and that the provisions under this right must be within the available resources of the state. So, where does this leave us? With a lot of difficulties in my mind. I think the right to adequate housing is extremely important. And for many in South Africa, is the answer on how to reduce the numbers of people living in slums. But it is also a right that is difficult to interpret and apply. It has been the subject of a great deal of litigation and will continue to be for a very long time. So, where does this leave a society. The reality is, South Africa is a country with a huge amount of disparity and maybe the provision of these economic rights is one step in the right direction. The other reality is, South Africa is a country struggling to meet the most basic needs of many of its citizens. The money just doesn't seem to be there. Although, and this is just me lamenting the state of things, maybe if some of the money went where it was supposed to, rather than into pockets, the potential of the progressive Constitution could be realised and be a wonderful example to so many other places. Now I will get back to trying to apply some of these very progressive ideas...