Human Rights and the South African Bill of Rights

General Overview of Human Rights

Human rights are defined as the basic rights and freedoms that belong to every person simply because they are human. These rights are universal, meaning they apply to everyone regardless of their race, gender, age, religion, language, nationality, disability, or social status. The primary purpose of human rights is to protect a person's dignity, equality, and freedom, serving as the essential foundation for peaceful and democratic societies.

Human Rights in the South African Context

In South Africa, the protection of human rights holds deep significance due to the nation's history of colonialism and apartheid. During the apartheid era, many citizens were denied fundamental rights based on race, which resulted in widespread discrimination, inequality, and injustice.

Following the transition to democracy in 1994, South Africa adopted a new Constitution. This legal framework placed human rights at the center of the country's legal and political systems. A key development was the creation of the Bill of Rights, which serves to protect individuals from state overreach and ensure equality for all.

Conceptual Terminology of Rights

Professor John C. Mubangizi notes that various names and phrases are used interchangeably to refer to human rights, though they possess subtle differences in meaning:

  • Fundamental Rights: Often set out in a country’s fundamental law (like a constitution) and must not be taken away by state legislation.
  • Basic Rights: Also used to describe rights essential for survival and human dignity.
  • Natural Rights: Rights inherent to human nature.
  • Common Rights: Rights shared by virtue of community or humanity.

Inherent human rights are essential qualities that allow individuals to fully develop their intelligence, talents, and conscience, as well as satisfy spiritual needs. Political, economic, and cultural differences must never be used as an excuse to deny or violate these rights.

The Traditional Classification: The Three Generations of Rights

The concept of "generations" of human rights was introduced by French jurist and UNESCO legal advisor Karel Vasak. He aligned these generations with the French Revolutionary values of Libert !, Égalit !, and Fraternit !.

First-Generation Rights (Libert !)

  • Focus: Civil and political rights.
  • Objective: Protection of citizens against arbitrary actions of the state.
  • Included Rights: The right to life, liberty, security, privacy, a fair trial, equality, and dignity.
  • International Framework: The International Covenant on Civil and Political Rights (ICCPR). It was adopted on 16 December 1966 by General Assembly resolution 2200A (XXI) and entered into force on 23 March 1976 after reaching 35 ratifications.

Second-Generation Rights (Égalit !)

  • Focus: Economic, social, and cultural rights.
  • Included Rights: Right to work, fair remuneration, collective bargaining, property, housing, education, health care, social security, and cultural participation.
  • International Framework: The International Covenant on Economic, Social and Cultural Rights (ICESCR). Adopted 16 December 1966; entered into force on 3 January 1976 (per Article 49) upon reaching 35 ratifications.

Third-Generation Rights (Fraternit !)

  • Focus: Solidarity or collective rights.
  • Origin: Associated with third-world nationalism and the realization that the existing international order was biased against developing states.
  • Requirement: These rights depend upon international cooperation and collective effort between governments and people.
  • Included Rights: Right to peace, right to development, and the right to a clean environment.

Core Principles of Human Rights

There are three central principles that define the modern understanding of human rights, which often clash with the "generational" classification:

  1. Universality: Human rights apply uniformly and with equal force everywhere in the world. Every individual possesses the same inherent rights regardless of location or background. These rights are inalienable.
  2. Interdependence: The enjoyment of one right is dependent on the possession of all other rights. For example, the right to life is interdependent with rights to food and health.
  3. Indivisibility: All rights (civil, political, economic, social, and cultural) are equally important and have the same basic characteristics. They cannot be enjoyed in isolation from one another.

Critiques of the Traditional Generational Approach

While the three-generation typology has helped expand human rights beyond Western liberal constructions, it is criticized for being limited and inconsistent. Major criticisms include:

  • Artificial Compartmentalization: Categorizing rights erodes the notions of indivisibility and universality. It creates permeable conceptual boundaries that should not exist.
  • Hierarchical Implications: Labeling rights as "first," "second," or "third" implies a priority for civil and political rights, suggesting a hierarchy that marginalizes other rights.
  • Ideological Labeling (The Color Critique): Rights are sometimes associated with colors that link them to specific ideologies:
    • Blue Rights: Associated with Western liberalism (First-generation).
    • Red Rights: Associated with socialism or communism (Second-generation).
    • Green Rights: Associated with third-world nationalism and environmental priorities (Third-generation).
  • Implementation Disparities: During the drafting of the Universal Declaration of Human Rights (UDHR), the US and UK argued that civil/political rights were immediately enforceable (justiciable), while socio-economic rights required "progressive realization" and reporting. This led to the perception that only first-generation rights are "real" rights.
  • Categorical Overlap: Some rights do not fit neatly into one category. For instance, the Right to Self-Determination is considered first-generation by some, third-generation by others, and it appears in both the ICCPR and ICESCR.
  • Individual vs. Collective Debate: First-generation rights are often viewed as individual and justiciable in domestic courts, while second and third generations are seen as collective and non-justiciable. However, the South African Constitutional Court has proven socio-economic rights are justiciable and enforceable.

The Right to Development (RTD)

The Right to Development is one of the most controversial subjects in human rights. It is grounded in third-generation solidarity rights.

Historical and Legal Foundations

  • 1945: Implicitly referenced in Articles 1, 55, and 56 of the United Nations Charter.
  • 1972: Keba M’Baye (former Senegalese judge) introduced the RTD in a lecture at the International Institute of Human Rights, calling for a "New Economic Order" to redress North-South global inequities.
  • 1977: First formal reference in Commission on Human Rights resolution 4(XXXIII).
  • 1979: Commission on Human Rights Resolution 4(XXXV) expressly recognized RTD as a human right.
  • 1986: The UN Declaration on the Right to Development (General Assembly resolution 41/128) was adopted.
  • Key Reaffirmations: African Charter on Human and Peoples' Rights (1981), Rio Declaration (1992), Vienna Declaration (1993), and the 2030 Agenda for Sustainable Development.

Substance and Features of the RTD

According to Article 1(1) of the UN Declaration, the RTD is an inalienable right by which every person and all peoples are entitled to participate in and enjoy economic, social, cultural, and political development.

Five specific features define the RTD:

  1. It is absolute and cannot be bargained away.
  2. It is a process of securing the right to participation.
  3. It is a process for achieving all human rights and fundamental freedoms.
  4. It is both an individual and a collective right.
  5. It reaffirms the right to self-determination.

Perspectives of Serges Djoyou Kamga

Kamga highlights that RTD is a "composite" right grounded in Article 1 of the 1986 UN Declaration and Article 22 of the African Charter. His key points include:

  • People-Centered: Development should improve well-being rather than just increase economic growth.
  • Integration: It integrates all categories of human rights.
  • State Responsibility: States are the primary duty bearers, though the international community must cooperate to create a fair economic order.
  • Elements: It includes transparency, accountability, equity, and the enhancement of capabilities, as clarified by the African Commission in the Endorois decision.