Social and Economic Rights and Transformative Constitutionalism in Africa: Imperative of Expanding the Frontiers of Judicial Activism

Abstract

Social and economic rights have undergone tremendous transformation over the years. Initially regarded with disdain and contempt, and as rights only to be realized progressively, these rights have increasingly become the cornerstone of activism in the quest for the protection of human rights in Africa. This stems from recognition of the importance of these rights in the lives of the ordinary African, particularly because they deal with issues concerning the basic necessities of life. The enforcement of such rights can therefore be a useful catalyst in the transformation of African societies. There is no doubt that in striving towards egalitarian transformation of society and the achievement of social justice, the constitution serves as a veritable touchstone and provides guiding principles for the effective governance of societies. This is where judicial activism comes in since mere constitutional stipulation of these rights is insufficient to guarantee their enjoyment. It is therefore imperative for African judges to be conscious of the challenges inhibiting the enforcement of these rights and interpret constitutional and legal instruments in a manner that will promote their enforcement. Using some well-known cases in South Africa, the African Commission on Human and Peoples' Rights, as well as the West African Court of Justice and Human Rights, the paper argues for an expansive interpretation and application of the constitutional provisions on these rights in order to enhance positive transformation of African States and make the constitutional provisions on these subjects meaningful to the ordinary African.