Expanding the Scope for Social and Economic Rights Litigation in Ghana and South Africa: South Africa Workshop White Paper

With a Gini coefficient that hovers around 63, South Africa is one of the most unequal countries in the world. Since its democratization in 1994, poverty levels have decreased only moderately while inequality has increased drastically. The World Bank estimates that the overall loss in South Africa’s Development Index due to inequality is 34.7%. South Africa’s economic reality sharply contrasts with the egalitarian vision set forth in the South African Constitution and by the Constitutional Court, which boldly promoted economic and social rights (ESR), redistribution, and restitution.

Despite ongoing efforts to advance ESR through the courts, the transformative potential of these strategies has been limited. The Constitutional Court is noted for its reliance on the discretionary “reasonableness” test when reviewing the government’s obligations to fulfill ESR. While preserving the separation of powers, this approach means ESR-based strategies rarely produce radical change. Market imperatives and dismal economic constraints have also limited the Constitution’s potential. There is thus a pressing need to rethink national strategies of inclusive, equitable development and of ESR realization within the Constitutional framework.

To take up this challenge, Julia Dehm (Postdoctoral Fellow, Rapoport Center) worked with a Soros Foundation-funded project led by Judge Dennis Davis (High Court, Cape Town) and Professors Lucie White (Harvard Law School) and William Forbath (Texas Law) in organizing a two-day workshop in South Africa. The event, “Towards a Constitutional Political Economy – Transition and Transformation,” was held at the Kramer Law School at the University of Cape Town on May 20-21, 2017. It convened a group of heterodox economic thinkers with prominent social and economic rights advocates and policymakers to explore the prospect of reconstructing the South African political economy.

This paper details the proceedings and debates that emerged from the workshop.