What’s the use of socio-economic rights in a constitution? – Taking a look at the South African experience

Landmark Constitutional Cases that Changed South Africa

“…At the outset, it must be noted that, although no reference to ubuntu was retained in the 1996 Constitution, the courts nevertheless have a duty in terms of section 211 (3) of the Constitution to apply customary law "when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law" and, according to section 39(2) of the Constitution, to promote the "spirit, purport and objects of the Bill of Rights" when developing customary law. Himonga, Taylor and Pope rightly point out that the recognition of customary law, which includes the concept of ubuntu, promotes the ultimate goal of our Constitution, namely transformative constitutionalism.…”

“…The Court forbade the government from further executing death row prisoners and ruled that these prisoners should remain in prison until new sentences were imposed. 3 The Court, among other things, held that the carrying out of the death sentence "destroys life", which is protected without reservation under section 9 of the Interim Constitution, "annihilates human dignity", which is protected under section 10 of the Interim Constitution, and is arbitrary in its enforcement and thus irremediable. 4 Furthermore, the Court held that the death penalty does not allow for rehabilitation, contrary to the indigenous value of ubuntu -a value that underlies our new constitutional order.…”

“…2 In terms of the South African Constitution of 1996, section 38 of the Bill of Rights provides that any person listed in the section whose constitutional rights have allegedly been infringed may approach a competent court for "appropriate relief". 3 "Appropriate relief" could include existing common law and relevant statutory remedies. Still, the question is whether these are sufficient to vindicate infringements of constitutional rights and deter future infringements effectively.…”

Kenya’s New Constitution: a Transforming Document or Less than Meets the Eye?

“…38 This has to be seen in line with the critique of the Christian Churches on the Harmonised Draft, which left the way open for same sex partners to found a family in Art. 42 the Kenyan drafters again went beyond the South African example with respect to the general provisions on application, implementation and enforcement, taking into account the jurisprudence created by the South African Constitutional Court over the past 13 years and the problems or criticisms which arose from the latter. In order to provide the tools for effective implementation of the rights, additional clauses were added in the Kenyan Constitution, especially with respect to the application of rights.…”

“…By contrast, in the South African experience, the lack of guidance on priorities from the Constitutional Court was criticised. 42 Equally, critics proposed to establish the burden of proof by the State in reaction to deficits of the jurisprudence.…”