Constitutional reform and human rights
By SR Balgopal
One may very well understand why politicians are not keen to extend human rights to what they encompass presently,
as it may not match their best interests
While our political leaders are in the process of studying the Carcassonne report on electoral reform and are alluding to possible constitutional reform with a view to introducing a “deuxième Republique”, it is imperative that the interest of political leaders should coincide with the people’s. We may, by way of digression, note that except for the views expressed by Dr Rama Sithanen, who has studied electoral systems in general, there have been very few informative comments from the political class on the Carcassonne report.
Given the paucity of meaningful contributions from the political class on the Carcassonne report so far, we shall not delve into the issue but shall rather briefly consider whether our political leaders should not consider enhancing the human rights provisions enshrined in our Constitution before embarking on a second Republic.
Fundamental human rights are dealt with in Chapter II of the Constitution as follows:
“3 Fundamental rights and freedoms of the individual
4 Protection of right to life
5 Protection of right to personal liberty
6 Protection from slavery and forced labour
7 Protection from inhuman treatment
8 Protection from deprivation of property
9 Protection for privacy of home and other property
10 Provisions to secure protection of law
11 Protection of freedom of conscience
12 Protection of freedom of expression
13 Protection of freedom of assembly and association
14 Protection of freedom to establish schools
15 Protection of freedom of movement
16 Protection from discrimination”
Whilst the above rights have been available to our citizens since the coming into force of our Constitution in 1968, it is important to recognize that ever since there have been very significant changes in the way human rights are construed internationally. Although human rights legislations do not guarantee that votes will be gained by our political class, as opposed to a change in the electoral system, it is not possible to avoid revisiting our Constitution to provide for the latest generation of human rights.
Leopold Sedar Senghor, the former President of Senegal, who happened to be an erudite, recognized both for his mastery of the French language and his political contribution to the empowerment of black people internationally, stated with apt simplicity that “human rights begin with breakfast”.
This assertion is full of meaning as certain rights need to be properly secured before one can turn to the luxury of rights such as the privilege of freedom of expression or the protection from discrimination. Whilst this may be obvious, it would appear that our local political class fails to see that subsistence rights to food and water have to be secured before turning to civil and political rights relating to political participation, arbitrary detention or freedom of expression.
It is true that in certain jurisdictions the view is held that there should be no prioritization among different types of rights given that they are considered to be mutually reinforcing: better nutrition, health and education will lead to improvements in political freedoms and the rule of law. Similarly, freedom of expression and association can ensure that the best decisions are taken to protect the right to food, health and work.
There has been a paradigm shift in the last 15 to 20 years in the way human rights are construed internationally. The traditional narrow reading of human rights is rarely explicitly defended in international relations. The expression “human rights” covers not simply civil and political rights but also economic, social and cultural rights.
In the words of the Universal Declaration, “everyone has a right to a standard of living adequate for the health and well-being of himself and of his family, including food, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
The main argument in jurisdictions which have not implemented the above rights is essentially as follows: economic and social policy is best determined by policy makers who are democratically accountable, and not by unelected judges with no specialised knowledge of how to prioritise the distribution of limited resources. However, this argument fails to recognise that in South Africa, for instance, the judiciary has reminded the government of its duty to justify restrictions of access to health care, and demanded that it brings about policies to ensure housing for the most marginalized. Such action by the judiciary is hardly censurable as it is left to the policy makers to decide how and when to implement the guidance provided by the judiciary.
We shall briefly consider the relevance and importance of some basic rights such as the right to food. This right does not mean that government has to provide free food for all. The right to food is more complex: it relates to a set of obligations relating to food security which involves ensuring access to food and planning for shortages and distribution problems. This right is construed as follows: government should avoid undermining food security and should plan for the needs of the population. There should also not be unjustified destruction of crops and discrimination with regard to access to food.
Kamayani Bali Mahabal, of the Centre for Enquiry into Health and Allied Themes, explains: “The Right to Food Campaign operates on the premise that everyone has a fundamental right to be free from hunger and undernutrition. Realising this right requires not only equitable and sustainable food systems, but a guarantee of livelihood security such as the right to work, land and social security.”
With so much agricultural land being sold off to foreigners under the garb of the Integrated Resorts Scheme, the Residential Estate Schemes or industrial projects, it is not difficult to see why our political class has not mooted the need for a right to food as a new constitutional right for our citizens.
In recent years, considerable focus has been placed on the right to water as water has come to be regarded as part of the globalised services market. This right is critical as public utilities are being privatised and many multinationals which have scant regard for human rights have been accused of pricing parts of the population off the market, resulting in a denial of the right to water.
In Bolivia, the World Bank used its clout to make the government privatise the water system. The water system was leased to a transnational corporation which was a subsidiary of Bechtel Corporation. Within weeks of privatisation, Bechtel had doubled and tripled water rates, provoking a mass movement of urban and rural users into the streets. This culminated in a weeklong general strike and the forced departure of the corporation. The water system was reverted back to the public service. In December 2001, the ousted corporation announced that it would sue the Bolivian government to the tune of $25 million for breaking the water contract.
Whilst multinationals have not yet taken a stake in our water system, it is not farfetched to see this happening in the near future. In this context, one may understand why politicians are not keen to extend human rights to what they encompass presently, as it may not match their best interests.
* Published in print edition on 31 December 2011
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