Socio-Economic Rights Project (SERP)
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The Socio-Economic Rights Project, which focuses on the realization of the socio-economic rights of groups and communities living in poverty.
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Item Social Citizenship: A Precondition for Meaningful Democracy(Agenda: Empowering Women for Gender Equity, 1999) Sandra, LiebenbergIn 1959, the scholar, TH Marshall, analysed the historical development of those features that were vital to effective 'citizenship'. He viewed democratisation as a progression, spanning three centuries. Civil rights were the great achievement of the 18th Century, establishing the principle of the equality of all members of society before the law. Political rights emerged in the 19th Century, paving the way for increasingly broader participation in the exercise of political power. The fulfilment of democracy is the recognition of the concept of 'social citizenship' in the 20th Century.Item The courts and socio-economic rights: carving out a role(ESR Review, 2002) Sandra, LiebenbergAlthough the jurisprudence on the socio-economic rights in the Bill of Rights is still in its infancy, the number of cases coming before the courts is gathering momentum. In particular, the Constitutional Court judgment in the case of Government of the RSA v Grootboom 2000 (11) BCLR 1169 (CC) [the Grootboom case] is a landmark in socio-economic rights enforcement in South Africa. Several important insights can be garnered from the emerging jurisprudence, particularly from the Grootboom case. The Constitutional Court has confirmed that the socio-economic rights in the Bill of Rights place both a duty on the State and other important role players to respect these rights, and a positive duty on the State to protect, promote and fulfil them.Item South Africa's evolving jurisprudence on socio-economic rights: An effective tool in challenging poverty(Law, Democracy & Development, 2002) Sandra, LiebenbergThe drafters of the Constitution clearly envisaged a far-reaching role for it in the transformation of post-apartheid society.' Among the key aims of the Constitution is to "improve the quality of life of all citizens and free the potential of each person".4 This constitutional concern with the socioeconomic well being of people is especially evident in the entrenchment of a wide range of justiciable socio-economic rights in the Bill of Rights." If the socio-economic rights in the Constitution are to amount to more than paper promises, they must serve as useful tools in enabling people to gain access to the basic social services and resources needed to live a life consistent with human dignity. This paper focuses on the role of the courts in promoting the realisation of socio-economic rights in South Africa.Item Universal access to social security rights: can a basic income grant meet the challenge?(ESR Review, 2002) Sandra, LiebenbergAccess to social assistance for those unable to support themselves and their dependants is a fundamental human right enshrined in the Constitution. In March this year, the Committee of Inquiry into a Comprehensive System of Social Security for South Africa, chaired by Prof. Viviene Taylor, released its consolidated report, entitled Transforming the present protecting the future. It recommends a range of policy measures aimed at building a comprehensive social security system in South Africa. The report's underlying philosophy is that social security reform should form part of a comprehensive social protection package. This package of developmental strategies and programmes should be designed to ensure, collectively, at least a minimum acceptable living standard for all citizens. Without such a core minimum of social provisioning, the constitutional promises of socio-economic rights, human dignity, equality and freedom will have a hollow ring.Item The New Partnership for Africa's Development : implications for the realisation of socio-economic rights in Africa(ESR Review : Economic and Social Rights in South Africa, 2004) Mbazira, ChristopherThe New Partnership for Africa's Development : Implications for the realisation of socio-economic rights in Africa Christopher Mbazira The realisation of socio-economic rights in Africa remains a distant goal. The majority of Africans live in poverty. Chronic hunger, malnutrition, HIV/Aids, ignorance and illiteracy continue to plague the continent. Military dictatorships, poor leadership, corruption, political conflicts, globalisation and structural adjustment programmes (SAPs) have all contributed to this situation. The debt burden exceeds manageable levels. States have increasingly withdrawn from providing such essential services as education, electricity and health. Welfare programmes have been reduced while retrenchment has increased ..Item A path to realising economic, social and cultural rights in Africa? A critique of the New Partnership for Africa's Development(African Human Rights Law Journal, 2004) Mbazira, Christopherhe article first sets out the legal framework for the protection of socio-economic and cultural rights in Africa. Some of the reasons that have been advanced for the non-realisation of socio-economic rights as compared to civil and political rights are discussed. Thereafter the article highlights the background of New Partnership for Africa's Development (NEPAD) and gives a brief description of its objectives and framework. It proceeds to look at the institutional set-up of NEPAD, including the operation of the African Peer Review Mechanism as an implementation strategy of NEPAD's objectives. The article examines how NEPAD intends to address the issue of socioeconomic rights through, for instance, ensuring an end to conflicts, democracy and good governance, and improvement of infrastructure and education. The article looks at NEPAD's commitment to ensure improved health and protection of the environment. It discusses NEPAD's approach to the advancement of culture and makes a critique of NEPAD's human rights component. NEPAD is Africa's hope for sustainable development and is a programme that commits African leaders to a number of positive undertakings, but NEPAD needs to be integrated with the African human rights system.Item Reading the right to food into the African Charter on Human and Peoples' Rights : Africa's regional developments(ESR Review : Economic and Social Rights in South Africa, 2004) Mbazira, ChristopherThe African Charter on Human and Peoples’ Rights (the Charter) of 1981 is the principal regional instrument protecting human and peoples’ rights in Africa. It incorporates a wide range of socio-economic rights, including the rights to property, to work under favourable conditions and equal pay for equal work, to health, to education, family rights and the right to self-determination.Item Giving money to children: the state's constitutional obligations to provide child support grants to child headed households(South African Journal on Human Rights, 2004) Sandra, Liebenberg; Beth, GoldblattOne of the most tangible effects of the HIV epidemic is the growing number of orphans and the emergence in ever increasing amounts of households headed by children. These new family configurations pose a wide range of challenges to our society. Not least of these is the challenge to change laws that hamper these households from accessing desperately needed benefits. The state currently provides a child support grant (CSG) for children in need. This grant (R170 per month from 1 April 2004) is provided to the ‘primary care giver’ (PCG) of a child who is currently under the age of 11 years. Neither the SocialAssist ance Act, nor the regulations promulgated under it set any age limit for the PCG. Effectively, however, such a person must be 16 years old as this is the age when an identity document is first provided, and a PCG has to provide his or her identity document in applying for the grant. In practice, the various offices of the Department of Social Development, responsible for administering the CSG, are treating applicants differently and some are even turning away those who are under the age of 21. This note argues that the exclusion of children living in child-headed households from the child support grant programme constitutes a violation of the Constitution.Item Basic rights claims How responsive is ‘reasonableness review’?(ESR Review, 2004) Sandra, LiebenbergSouth Africa’s 1996 Constitution (the Constitution) is widely renowned for its holistic, inclusive Bill of Rights. A particular innovation is its inclusion of a wide range of fully justiciable socio-economic rights. There is now a burgeoning body of jurisprudence from the Constitutional Court interpreting these rights. There can be little doubt that South African jurisprudence has given a significant boost to international endeavors to protect socio-economic rights. Through its jurisprudence, the Court has to achieve a critical balance between effectively protecting the socio-economic rights of the poor, while also respecting the roles of the legislature and executive as the primary branches of government responsible for realising socio-economic rights.Item The right to health and the nature of The right to health and the nature of socio-economic rights obligations under the African Charter The Purohit case(ESR Review : Economic and Social Rights in South Africa, 2005) Mbazira, ChristopherThe African Charter on Human and Peoples’ Rights (the African Charter) guarantees a broad range of economic, social and cultural rights (socio-economic rights) as well as civil and political rights.Item The value of human dignity in interpreting socio-economic rights(South African Journal on Human Rights, 2005) Sandra, LiebenbergThere has been considerable criticism of the use of human dignity as a guiding value in the context of South Africa's equality jurisprudence. What are the implications of the use of the value in socio-economic rights jurisprudence? Drawing on the work of Martha Nussbaum, the article links the value of human dignity to the material conditions necessary to enable people to develop and exercise their capabilities. Access to basic social services is crucial not only to people's physical survival, but also to enable the development of their potential to shape their own lives and to be active agents in the shaping of our new society. Human dignity as a relational concept requires society to respect the equal worth of the poor by marshalling its resources to redress the conditions that perpetuate their marginalisation. This, in turn, requires a focus on the actual impact of the state's actions or omissions on the life chances of disadvantaged groups, and a response that is proportionate to the seriousness of that impact. In constitutional adjudication, it requires that a high burden of justification is placed on the state in cases involving a deprivation of basic human needs. The article concludes by examining how the Constitutional Court's reasonableness review standard and remedial jurisprudence could be strengthened to accord greater value to this conception of human dignity.Item Breaking new ground : the need for a protocol to the African Charter on the abolition of the death penalty in Africa(African Human Rights Law Journal, 2005) Chenwi, LilianThe 1980s saw the drafting and adoption of international treaties on the abolition of the death penalty. In the European and Inter-American human rights systems, steps have been taken to abolish the death penalty by means of the adoption of protocols to their respective human rights treaties. Therefore, the African continent is the only region with a human rights treaty that does not have a protocol on the abolition of the death penalty. Human rights systems need to be constantly adapted to match changing conditions. Accordingly, in view of the international human rights developments and trends towards the abolition of the death penalty, this article addresses the need for a protocol to the African Charter on Human and Peoples' Rights on the question of the abolition of the death penalty in Africa.Item Conference “Seeking security: Towards a new vision for tenure relations in farming areas”(ESR Review : Economic and Social Rights in South Africa, 2005) Chenwi, LilianNkuzi Development Association (NDA) in partnership with Social Surveys Africa (SSA) organised a conference on the tenure security of farm dwellers, which was held in Johannesburg from 25–27 October 2005.Item Advancing the Right to Adequate Housing of Desperately Poor People: City of Johannesburg v. Rand Properties(Human Rights Brief, 2006) Chenwi, LilianInadequate housing, the growth and overcrowding of informal settlements, and the occupation of private land and abandoned buildings are prevalent in South Africa. The result is that many of the country’s most vulnerable — women, children, the elderly, and those living with disabilities — are evicted and left homeless. In the inner city of Johannesburg, thousands of desperately poor people are forced to illegally occupy unsafe buildings (so-called “bad buildings”) because they cannot afford accommodation on the private residential housing market nor access the urban social housing units.Item Prisoners’ right of access to antiretroviral treatment(ESR Review : Economic and Social Rights in South Africa, 2006) Mbazira, ChristopherPrisoners are susceptible to a number of illness and diseases due, in part, to poor living conditions in prisons (e.g. overcrowding and poor nutrition), substance abuse and sexual violence (e.g. male rape). From a health care perspective, prisons present a particular challenge. From 1996 to 2005, the number of prisoners dying from natural causes per year increased from 211 to 1 507. HIV/Aids has contributed to this increase. The rate of HIV infection among prisoners is unknown and the Department of Correctional Services (the Department) has commissioned a research project to establish this. In the absence of accurate and publicly accessible data, it is difficult to establish the size and scope of HIV infection and the actual number of persons living with AIDS in our prisons. What we do know is that prisoners’ access to anti-retroviral treatment (ARV) is extremely limited. To date, only one accredited ARV treatment centre has been established by the Department, at Grootvlei Correctional Centre in the Free State.Item Needs, rights and transformation: adjudicating social rights(Stellenbosch Law Review, 2006) Sandra, LiebenbergOne of the most contested issues in South Africa’s burgeoning jurisprudence on social rights relates to how the courts should enforce the duties imposed by these rights. Debate has focused in particular on the extent to which the courts should affirm an enforceable right to the provision of basic needs by those who lack access to these needs. In the South African context, this is a plight affecting a substantial portion of our population, and must also be contextualised within the high degree of inequality existing in our society. This article explores the relationship between a jurisprudence of basic needs and the transformative goals of the Constitution. The question that interests me is whether a jurisprudence relating to the fulfilment of social and economic needs can have transformative potential, and if so, under what conditions. My aim is to examine how such a perspective can inform the development of our socio-economic rights jurisprudence in a way that supports a project of social transformation consistent with constitutional values and rights.Item The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights(ESR Review : Economic and Social Rights in South Africa, 2006) Chenwi, Lilian; Mbazira, ChristopherHistorically, economic, social and cultural rights (ESC rights) have received less protection through enforcement mechanisms than civil and political rights. Victims of ESC rights violations do not have the opportunity of submitting formal complaints to the Committee on Economic, Social and Cultural Rights (CESCR), the supervisory body of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Conversely, the 1976 Optional Protocol to the International Covenant on Civil and Political Rights allows victims to lodge complaints with the Human Rights Committee (HRC), the supervisory body of the International Covenant on Civil and Political Rights (ICCPR).Item Initiating constructive debate: a critical reflection on the death penalty in Africa(Comparative and International Law Journal of Southern Africa, 2006) Chenwi, LilianFor the first time in the agenda of the African Commission on Human and Peoples' Rights, during the 36th Ordinary Session (2004), the death penalty was one of the issues discussed. Commissioner Chirwa initiated debate on the death penalty in Africa, urging the commission to take a clear position on the subject. She recommended that in view of the international and human rights developments and trends, it is necessary for the continent to initiate constructive debate on the question of the death penalty in Africa. It is against this background that this article is written, with the aim of showing that there is a need for constructive debate on the death penalty in Africa. Considering that the African Commission is encouraging such a debate, the article begins with an examination of its stance on the subject. This is followed by a brief evaluation of the use of the death penalty in Africa, highlighting some areas of concern. The death penalty in Africa is then considered from a human rights perspective, focusing mainly on the possibility of relying on constitutional provisions on the right to life and the prohibition of cruel, inhuman and degrading treatment to challenge the death penalty.Item Giving effect to the right to adequate housing : the need for a coherent (national) policy on special needs housing : legislationtion and policy review(ESR Review : Economic and Social Rights in South Africa, 2006) Chenwi, LilianAccording to the Centre for Housing Rights and Evictions (2006), the right to housing is one of the most widely violated human rights. Over a billion people worldwide have inadequate housingItem Fair Trial Rights and Their Relation to the Death Penalty in Africa(International and Comparative Law Quarterly, 2006) Chenwi, LilianA fair trial is a basic element of the notion of the rule of law, and the principles of ‘due process’ and ‘the rule of law’ are fundamental to the protection of human rights. At the centre of any legal system, therefore, must be a means by which legal rights are asserted and breaches remedied through the process of a fair trial in court, as the law is useless without effective remedies. The fairness of the legal process has a particular significance in criminal cases, as it protects against human rights abuses. Hence, constitutional due process and elementary justice require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved.