Civil and political rights are meaningless unless underpinned by the all-empowering economic, social and cultural rights
21 September 2015
Deputy Minister of International Relations and Cooperation of South Africa, Luwellyn Landers and Deputy Minister of the Department of Justice and Constitutional Development, John Jeffery, addressed a national workshop on the International Covenant on Economic Social and Cultural Rights (ICESCR). The purpose of the workshop was to develop an implementation framework for the ICESCR which was ratified by South Africa on 12 January 2015. The workshop provided an in-depth overview of the ICESCR and the obligations on the State Party as well as the linkages with National Development Plan amongst others.
STATEMENT BY LUWELLYN LANDERS MP,DEPUTY MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION, AT THE NATIONAL WORKSHOP ON THE DOMESTIC IMPLEMENTATION OF THE PROVISIONS OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Monday, 21 September 2015
Let me begin by thanking the Department of Justice and Constitutional Development for inviting me to this workshop. We are gathered here to reflect on the way forward regarding the domestic implementation of the provisions of the International Covenant on Economic, Social and Cultural Rights, following its ratification by our Parliament in November 2014.
As we all know, the Department of Justice and Constitutional Development is the custodian of South Africa’s human rights law at the national level and coordinates all human rights related issues and plays a critical role in the implementation of international human rights Instruments.
The United Nations Bill of Rights came into being at the height of the Cold War, and resulted in the artificial separation of human rights into civil and political rights, or first generation rights, on the one hand, and economic, social and cultural rights, or second generation rights, on the other. This artificial separation accounted for much of the tensions of the East-West blocs for a considerable period between 1948 and the early seventies.
The 1968 Proclamation of Teheran (which was the Outcome of the First World Conference on Human Rights celebrating the 20th Anniversary of the Universal Declaration of Human Rights) underlined the primacy of economic, social and cultural rights. The Proclamation stressed the fact that civil and political rights are meaningless unless underpinned by the all-empowering economic, social and cultural rights.
The 1986 Declaration on the Right to Development marked a watershed moment in a process seeking to integrate these two sets of rights, and the affirmation of their inextricability.
The 1993 World Conference on Human Rights held in Vienna also produced a monumental outcome known as the Vienna Declaration and Programme of Action. It confirmed the universality, indivisibility, interdependence and inter-relatedness of all human rights and fundamental freedoms. It was at this historic Conference that the member states of the United Nations unanimously recognized and acknowledged the right to development as a fundamental human right, as well as a process by which all human rights, whether civil or political, or economic, social and cultural, are progressively realized.
Paragraph-5 of the Vienna Declaration and Programme of Action emphasizes that all human rights must be treated in a fair and equal manner, on the same footing, and with the same emphasis.
Our own Constitution is also an affirmation of the inextricability of all human rights and fundamental freedoms. In a real sense, our Constitution enshrines all civil, cultural, economic, political and social rights in an interwoven, seamless and non-hierarchical manner.
For reasons of historical inequalities and disparities, our democratic dispensation places an emphasis on the all empowering economic, social and cultural rights in order to ensure a better life for all, while respecting the centrality of civil and political rights. This ensured, among others, that government provided essential services in the areas of economic, social and cultural rights through successive macro-economic policies.
Following ratification by our Parliament, the International Covenant on Economic, Social and Cultural Rights came into force on 12 April 2015. In terms of compliance with the provisions of the Covenant, this has major implications for our country. There are numerous steps which have to be taken to ensure that we do not lag behind. These include:
(a) the creation of a National Coordination Mechanism (NCM) as a juristic body that has to coordinate all work undertaken by National Departments with mandates in this regard. The NCM will also have powers to pronounce and advocate for increased budgetary baselines and resources in order to fully and effectively achieve the fulfillment of the rights in their purview. Importantly, the co-coordinating role of the NCM, by design, should extend to a range of actors, including the Corporate Sector, in realizing the rights contained in the Covenant;
(b) ensure that the South African Initial Country Report is submitted to the Committee on Economic, Social and Cultural Rights on or before the due date of 12 April 2017; and
(c) the signing and ratification of the Optional Protocol to the Covenant on Economic, Social and Cultural Rights as a matter of urgency.
With the accomplishment of all the steps mentioned, DIRCO should be in a better and stronger position to take a leadership role at the international level on critical areas associated with the Covenant, such as:
(i) the elaboration of an additional Protocol to the Covenant on ESC Rights, creating the Committee on Economic, Social and Cultural Rights in Treaty Law, and transferring the Treaty Competencies from the Economic and Social Council (ECOSOC) to the Committee. This effectively implies the total revision of Part-4 of the Covenant, which is considered to be obsolete and defunct, especially with the advent of the Human Rights Council in 2006, which disconnected human rights from the ECOSOC and linked these with the General Assembly, in furtherance of the South African led Human Rights Resolution 4/7;
(ii) the elaboration of an Amendment Protocol to the two Covenants integrating the Right to Development into the UN Bill of Rights;
(iii) taking effective leadership in the processes of the Non-Aligned Movement at the UN level for the elaboration of a UN Convention on the Right to Development; and
(iv) the continued advocacy for the justiciability of the Economic, Social and Cultural (ESC) Rights in International Human Rights Law.
Finally, we stand ready to support all mechanisms to ensure that South Africa is among those leading countries in advocating for the practical realization of ESC Rights at the domestic level through maximum protection, adequate remedies and zero tolerance on impunity for violations of these rights.
Address by the Deputy Minister of Justice and Constitutional Development, the Hon John Jeffery, MP, at a Capacity Building Workshop on the Development of a Framework for the Implementation Plan of the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR),
Deputy Minister of International Relations and Cooperation, Luwellyn Landers Chairperson, Deputy Chairperson and Commissioners of the SAHRC
The Director-General of the DOJCD, Ms Nonkululeko Sindane
Members of Chapter 9 Institutions
Representatives from academia
Representatives from civil society,
Ladies and gentlemen,
Colleagues from various government departments, friends
When we talk about the inclusion of socio-economic rights in our Constitution today, we talk about them as if it’s the most natural thing in the world that they should be there.
Justiciable socio-economic rights have become so much part and parcel of the constitutional discourse in our country that, in a sense, we almost tend to take them for granted.
But we forget that the struggle was about more than a struggle for freedom. It was not only a struggle for civil and political rights. The fight for the inclusion of socio-economic rights was as much part of the struggle. As Prof Christof Heyns and Dawie Brand wrote in a 1998 article –
“One side argued for and the other side campaigned against granting a significant role for socio-economic rights in the Constitution, with a range of options in between.
Those who argued in favour of a significant role for these rights pointed out that it makes little sense to tell people that their civil and political rights will be protected, if they continue to be at the mercy of the elements and of social exploitation. Freedom of expression means little to someone who is dying of hunger.
The argument on the other side was that it would be equally erosive to the legitimacy of the Constitution if it promised too much.”
Before the birth of our Interim Constitution, in October 1990, the Legal and Constitutional Committee of the ANC published a draft Bill of Rights for discussion and comment.
Prof Fink Haysom, in an article he wrote, said that the provisions of the Bill that drew the most attention among South African lawyers and the media were those that protected the social, educational, economic, and welfare rights contained in Article 10 of the Bill.
The explanatory note to the Bill clearly asserted that the inclusion of such rights would not be at the expense of other rights. The explanatory note stated -
“We do not feel that it is necessary to make a constitutional choice between having freedom or having bread.
We do not want freedom without bread, nor do we want bread without freedom.”
The ratification of the Covenant in January this year, and the entering into force thereof in April, brings South Africa a step closer to the further realisation of both bread and freedom.
The ICESCR is an international human rights treaty which establishes an international framework for the protection and realization, by state parties, of socio-economic rights such as the rights to food, housing, health care and education.
State parties that have ratified the ICESCR have a legal obligation to work towards the realisation of the socio-economic rights set out in the ICESCR.
South Africa is the 163rd state party to this treaty.
Ratifying the Covenant represents an important step forward, giving the ICESCR greater force. South Africa’s ratification will deepen the enforcement of socio-economic rights in the country.
The ratification of the Covenant further necessitates aligning domestic legislation, policies and programmes with the obligations contained the ICESCR.
The language and obligations of our Constitution have, to a large extent, been modelled on the socio-economic norms and standards of the Covenant.
In March last year, Prof Sandra Liebenberg presented a paper on the state’s obligations in relation to the implementation and reporting under the Covenant.
She highlights the potential of the Covenant as a tool for poverty reduction in our country and highlights three areas of focus – expanding the scope of socio-economic rights; developing rights-based indicators for poverty reduction, and enhancing accountability for socio-economic rights violations.
What is meant by expanding the scope of socio-economic rights? As Prof Liebenberg explains, there are many similarities between the rights protected in the Covenant and the socio-economic rights entrenched in the South African Bill of Rights. But there are also important differences.
For example, a key right which is recognised in the Covenant, but is not recognised in the South African Constitution is the right to work.
Section 23 of the Constitution protects rights in work such as the right of everyone to fair labour practices and the associational and collective bargaining rights of workers and employers. However, there is no equivalent constitutional guarantee corresponding with the rights in article 6 of the Covenant.
By acceding to the Covenant, South Africa is afforded the opportunity to view employment and job creation through a rights-based perspective and to draw on the resources and experience available through the Covenant and its supervisory body, the Committee on Economic, Social and Cultural Rights to develop this central right in the struggle against poverty and inequality.
For us in government, and I’m sure for those of you in academia and in civil society, it is important that the rights in the Covenant become part of the daily lives of our people. For this reason it is important for us to create linkages with the National Development Plan and the various outcomes in terms of the Medium Term Strategic Framework 2014 – 2019.
The delivery of socio-economic rights takes place at all 3 spheres of government. The Executive, through various policies, programmes and administrative measures; the Legislature with the passing of various laws and the Judiciary, through its socio-economic rights jurisprudence, all play a pivotal role in giving meaning and content to these rights.
The importance of international law in the interpretation of the rights in the Bill of Rights finds expression in Section 39 of the Constitution which obliges a court, tribunal or other forum to consider international law when interpreting the Bill of Rights. The Constitutional Court – in S v Makwanyane - has gone one step further by confirming that regard may be had to both binding and non-binding international law.
The biggest task, however, lies beyond the mere ratification of the Covenant.
We must ensure that the principles laid down in cases such as Grootboom, Soobramoney, Khoza, and Changing Tides, allfind expression in planning, policy development and implementation. This is beginning to happen, with examples such as the NDP 2030 and the various cluster priorities.
On the issue of reporting on progress in progressively realising socio-economic rights, it is becoming increasingly clear that we must begin to work together towards an alignment of processes such as the Annual Performance Plans required by National Treasury, Cluster Reporting on the Outcomes of the Government Programme of Action, Reporting to Parliament and reporting on regional and international instruments.
State parties to the Covenant have to comply with reporting obligations, carried out by the Committee on Economic, Social and Cultural Rights whereby the implementation of rights are monitored through the assessment of State reports.
South Africa must submit its initial report within two years after ratification, where after periodic reports must be submitted every five years.
This means that the report writing process for the ICESCR will require a well-aligned and cooperative relationship between the relevant departments in the clusters.
The Department of Planning, Monitoring and Evaluation’s role in assisting with the reporting writing process is also important, particularly with the setting of base-line indicators that can make the compilation of data and information easier.
One of the issues that this workshop must investigate is recommendations for a co-ordination mechanism to enhance treaty compliance.
It is perhaps necessary to do an appraisal of the mechanisms already established, so as to enhance its effectiveness.
We also need to strengthen institutional processes, such as those recommended by the UN.
Over the course of today and tomorrow, in the various commissions, the role of Chapter 9 institutions and civil society should also be discussed.
For example, the SAHRC has been given the constitutional responsibility to monitor progress on the realisation of socio-economic rights – how can this monitoring role be optimally linked to the work to be done under the ICESCR and the Bill of Rights?
Then, with regards to the role of civil society, I want to reiterate what I said at the recent Colloquium on Constitutional Awareness and Human Rights Education. I said that -
“Government’s most important partner in the quest for accessible justice is civil society. And we are planning to work even closer with civil society on various constitutional literacy initiatives in future. Civil-society organisations in South Africa often have greater success in promoting human rights awareness than government alone is able to achieve.”
I asked the question of how we should structure the partnership between government and civil society and said that –
“Genuine partnership implies mutual respect and good faith. Government cannot be an ATM - simply providing the funding, but then be expected to back away.
Civil society is independent and it must be independent. Our partnership should never restrict civil society from being publically critical of Government or the Department of Justice, if and where such criticism is justified.
But, a true partnership is a two-way street. Civil society cannot want to partner with government on the one hand, but be vehemently anti-government at the same time.”
But, sadly, it appears that a some civil society organizations do not want to stick to that – they want to have access to governments resources and participate in programmes, but want to be able to say whatever negative thing they want about government and not acknowledge any positive action taken by government.
Section27, on its website, states proudly that “civil society and its role in constitutional education was at the forefront of the first ever National Colloquium on Constitutional Awareness and Human Rights Education, held in Pretoria last week.”
No mention is made of the fact that the Colloquium was made possible by government or that the event was an initiative of the Department of Justice and Constitutional Development.
As a participant at the Colloquium, Section27 is fully aware of the various programmes undertaken by government to enhance access to the Constitution. Section27 is also fully aware of the Constitutional awareness programme, as well as SEJA/Amarightza.
Our Department printed and distributed copies of the Constitution which are widely available. We have also translated the Constitution into all official languages and Braille.
We have, in partnership with the Department of Basic Education, the SAHRC and the Foundation for Human Rights launched a booklet called the Constitution Made Easy for Learners and has been distributed to Grade 12 learners throughout the country. Plans are underway to ensure that Grade 10 and 11 learners also receive the booklet.
Our Department has been engaged in educating the public on the Constitution itself, as well as on constitutionally mandated pieces of legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act, the Promotion of Administrative Justice Act and the Promotion of Access to Information Act.
These three pieces of legislation have also all been printed in booklet form in all official languages and is widely used by academics, legal professionals and even members of the judiciary.
The National School Moot Court Competition, another initiative of the Department of Basic Education, the Department of Justice and Constitutional Development and civil society, has become extremely popular with learners and has generated so much interest that the DBE has decided to include this programme into its curriculum.
Yet, despite this, on SAFM last week, Section27’s Mluleki Marongo goes on radio and, without any qualification, blames government for a lack of access to the Constitution. Not a word of mention about the Colloquium, despite Section27 being part of organising the event. Not a word of mention of any of the various programmes being undertaken by government to enhance access to the Constitution.
Is that fair?
The people of South Africa will better benefit if Government works with civil society on programmes, but we cannot work with organisations with whom there is no mutual respect or good faith.
Ultimately, we all need to join hands and work together for the betterment of our people and to live up to what the Constitution demands from us all.
Issues like constitutional and human rights awareness, and in this case, compliance with the Covenant, are too important to be the subject of petty point-scoring.
Each and every right we have in the Constitution today is the result of struggle and negotiation – we may never take it for granted.
In conclusion, I want to wish you all the best for a very fruitful and successful workshop.
Let us be inspired by the words of late President Nelson Mandela:
“A simple vote, without food, shelter and health care is to use first generation rights as a smokescreen to obscure the deep underlying forces which dehumanise people. It is to create an appearance of equality and justice, which by implication socio-economic inequality is entrenched. We do not want freedom without bread, nor do we want bread without freedom. We must provide for all the fundamental rights and freedoms associated with a democratic society.”
I thank you.
Department of Justice and Constitutional Development of South Africa
Photo: Jacoline Schoonees