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5 of 8 DOCUMENTS

Copyright (c) 1993 by the President and Fellows of Harvard College Harvard Civil Rights-Civil Liberties Law Review

SPRING, 1993

28 Harv. C.R.-C.L. L. Rev. 505

LENGTH: 10278 words

NOTE: FALSE HOPE OR A REALIZABLE RIGHT? THE IMPLEMENTATION OF THE RIGHT TO SHELTER UNDER THE AFRICAN NATIONAL CONGRESS' PROPOSED BILL OF RIGHTS FOR SOUTH AFRICA

NAME: KIM ROBINSON *

BIO:

* The author would like to thank Philip Alston, Makau Mutua, Henry Steiner and Thekiso Tlhacone for their insights and comments on this Note. The author is also grateful to the attorneys and staff of the law firm, Smith, Tabata & Van Heerden of King William's Town, South Africa for their assistance and inspiration.

SUMMARY: ... The pillars of apartheid legislation have been repealed and the various political power brokers in South Africa are in the process of constructing a post-apartheid society. ... Third, it analyzes the justifications for and counter-arguments against recognizing the need for housing as a human right. ... The exclusion of housing rights would entrench substantial resources that could be utilized to raise the living standards of the Black majority in the hands of its apartheid-era title-holders. ... For instance, a post-apartheid legislature would probably be unable to adopt statutes that would undermine housing rights; however, a minority veto could prevent the legislature from placing affirmative duties on the government. ... An affirmative action response is both essential and equitable particularly because through apartheid there has been formalized affirmative action for the White minority for more than forty years. ... The inexperience with entitlements such as the right to shelter, as opposed to anything peculiar to that right, is possibly the most significant hurdle to determining what a housing right actually is or can be. ... The first generation right to vote was made dependent upon the payment of poll taxes and proven literacy -- illustrating the link between political and social rights. ...

TEXT: [*505] Introduction

The pillars of apartheid legislation have been repealed n1 and the various political power brokers in South Africa are in the process of constructing a post-apartheid society. n2 The African National [*506] Congress (ANC) is advocating a constitution and bill of rights that would not only protect traditional civil and political rights (first generation rights), n3 but would also protect social rights, n4 such as the rights to shelter, food, education and health care (second generation rights). The ANC's proposed bill of rights stands in contrast to the present government's Page 2 28 Harv. C.R.-C.L. L. Rev. 505, *506

proposal, which does not include social rights. n5 Whether fundamental human needs should be constitutionalized is a contentious debate centering around the proper role of a constitution and the courts, the justiciability of social rights, and the White minority's fear of losing its present political and economic power.

This Note argues that the new South African bill of rights is the appropriate forum for constitutional entrenchment of social rights, particularly the right to shelter. n6 In the absence of a political commitment to meeting the material needs of the Black majority, n7 [*507] neither social and economic justice nor genuine participatory democracy will be achieved.

The issue of social and economic rights is also relevant to the United States of America. However, while aspects of this Note can be applied to the American context, in large part its argument relies on the specific features of the history and contemporary political dynamic of South Africa. There is a lack of dialogue on the issue of economic and social rights in the United States, due in part to the privilege that Americans enjoy relative to others. For many in the United States the fulfillment of one's economic needsis not threatened; if this threat were not so alien, it is likely that debate around the issue would be intensified. The lack of dialogue on social rights in the United States is problematic; the myopic civil rights/civil liberties focus of the discourse neglects to analyze how poverty and economic vulnerability prevent individuals from fully participating in our society and our polity and from fully exercising their civil rights and civil liberties. n8

This Note focuses on the issue of social rights in South Africa; however, its analysis also implicates civil rights and civil liberties. Social rights and traditional political rights are interdependent, particularly in the context of a nation attempting to progress from a legacy of deprivation and underdevelopment.

At the outset, this Note will present South Africa's vital statistics on race, economic status, land distribution and housing. Second, this Note explores the ANC's conception of economic rights and the right to shelter. Third, it analyzes the justifications for and counter-arguments against recognizing the need for housing as a human right. Finally, this Note examines how the ANC envisions actually implementing the right to shelter.

[*508] I. The South African Population and Economic Inequality

A. The South African Population

According to the Urban Foundation, the total population of South Africa (including the ten "homelands") n9 in 1991 (the year of the most recent census) was 38,500,000. The breakdown by racial group is as follows: Africans, 29,260,000 (76% of total); Indians, 1,155,000 (3%); Coloureds, 3,080,000 (8%); and Whites, 5,005,000 (13%). n10 South Africa has an extremely skewed pattern of income and wealth distribution. The percentage of the country's income enjoyed by the four racial groups is quite disparate. While Indians and Coloureds generally consume income proportionate to their representation in the population, n11 Whites and Africans consume disproportionately. In 1990, the distribution of gross domestic product by racial group was as follows: Africans, 33%; Indians, 4%; Coloureds, 9%; and Whites, 54%. n12

B. The Deprivation of Housing in South Africa

The need to constitutionalize the right to shelter results from the State's refusal to provide sufficient units of affordable housing for the majority of South Africans. The housing issue is not about [*509] homelessness per se, but rather, about the varying degrees of squalor and overcrowdedness that millions of Black South Africans are forced to endure in informal settlements. n13 South Africa's skewed land occupancy and ownership arrangement has been achieved at tremendous human cost and suffering, specifically the forced removal of millions of non-White South Africans. Between 1960 and 1983, at least 3.5 million people were relocated against their will. n14 Forced relocations were effectuated by brutal means including eviction at gunpoint; the bulldozing, burning and demolition of shacks; termination of the community's water supply; and arrests of residents for trespass. n15 After forcibly removing individuals and families, the government typically refused to intervene to improve their living conditions. Thus, Page 3 28 Harv. C.R.-C.L. L. Rev. 505, *509

millions of South Africans live in overcrowded areas without running water, indoor toilets, electricity, sewage services or paved roads. n16 According to one estimate, more than half of the African population lives in even worse conditions of abject squalor in one-room shacks in informal settlements. n17 These conditions often exist within a short drive from modern White areas replete with the services, infrastructure and conveniences of any developed nation.

South Africa's severe inequities in land distribution and ownership and its concomitant housing crisis are a direct and horrific [*510] legacy of apartheid policies. South Africa's ten bantustans consist of only approximately thirteen percent of the country's surface area, yet were intended to be "home" to the vast majority of Africans. n18 White South Africans live in the remaining eighty-seven percent of the country, areas that include the country's major industrial, agricultural and urban centers. Racially segregated residential zones are carved out of these White areas for Indians and Coloured people, n19 and townships for Africans outside of the homelands have been built for the purpose of providing labor to White areas. n20

Housing shortage figures in South Africa, including the ten "homelands," vary from 2 million units to 3.4 million units; the data consistently reveal the extreme impoverishment of the African populace. n21 One 1990 estimate asserted that an additional 1.2 million units, on top of the 2 million units to cover the present housing shortage, would be needed before the year 2000 in order to meet projected needs. To meet this goal and eliminate the housing shortage would mean building 320,000 houses annually, a rate of approximately four times the current building rate. n22

II. The ANC Conception of Social Rights and the Right to Shelter

The proposed ANC Bill of Rights is the most comprehensive and explicit endorsement of both civil and political rights as well as economic and social rights in the world, embodying a vision of [*511] social justice informed by human rights jurisprudence and many international constitutions. n23 Unlike many other governing bodies that have recognized economic rights, the ANC does not prioritize them over civil and political rights. n24 The inclusion of housing rights n25 in the ANC Bill of Rights rejects the dichotomy between first and second generation rights and establishes legal means for the realization of social rights. n26 Furthermore, the entrenchment of social needs as rights in the country's constitution symbolizes that the fulfillment of these needs is a foremost government priority.

The ANC's objective is the achievement of a unitary non-racial democracy in which all South Africans can live in peace and with dignity, in a society based on equality and community, not neo-apartheid. n27 It would be impossible, as well as oxymoronic, for a new administration to build a united and democratic South Africa while allowing apartheid-based White minority privilege to continue amidst the poverty and squalor of the Black majority. n28 [*512] The ANC believes that social and economic rights must be included if the document and its processes are to empower the dispossessed majority. The exclusion of housing rights n29 would likely limit political debate and activism on a central issue of the struggle for a democratic South Africa -- the redress of the economic deprivation and social disadvantage caused by apartheid. n30

Under the ANC Bill of Rights, access to housing would be protected in several ways. For example, persons could not be removed from their homes without a court order (Art. 12.5); legislation would regulate land use with the aim of providing adequate housing for the entire population (Art. 12.6); a land claims court would be established with the power to compensate and award land to plaintiffs (Art. 12.7); legislation would improve access to land for those previously discriminated against (Art. 12.8); and land could be redistributed (Art. 12.9).

In the absence of constitutional endorsement of these rights, apartheid would be eliminated in name only. The exclusion of [*513] housing rights would entrench substantial resources that could be utilized to raise the living standards of the Black majority in the hands of its apartheid-era title-holders.

A one-person, one-vote regime in which the Black population is the numerical majority would ostensibly reflect the concerns of the majority. However, the post-apartheid political process may not actually represent the majority because it is unclear how much influence minority parties will have. For instance, a post-apartheid legislature would probably Page 4 28 Harv. C.R.-C.L. L. Rev. 505, *513

be unable to adopt statutes that would undermine housing rights; however, a minority veto could prevent the legislature from placing affirmative duties on the government. In light of South Africa's inequity, this latter issue is of crucial concern. Thus, because the political process may not truly reflect the majority, constitutional entrenchment of the right to shelter is critical.

Affirmative action n31 animates the ANC's vision of social rights. The ANC conception of affirmative action is more expansive, yet more fundamental than the American conception because it not only includes measures to redress past discrimination, but also requires public and private actors to build an equal society through redistribution and corrective policies. n32 On the role of affirmative action and housing, one ANC member asserted the following:

[I]f the law . . . were to give equal protection to a family of ten occupying a two-roomed shanty and a family of two living in a ten-roomed mansion, it would not be enlarging the area of human freedom in South Africa. . . . The argument here is not whether or not the ten-roomed mansion should be confiscated, but whether or not there should be an obligation on the State and the construction industry to take measures to reduce the massive imbalance. n33

The ANC perspective stands in contrast to the South African government's qualified endorsement of affirmative action. n34 The [*514] South African government, for example, does not advocate land redistribution or a land claims court. n35 The fact that the South African government supports affirmative action at all reflects the majority's political clout. However, the government's approach presumes that equality can be established in the wake of apartheid with limited effort. By embracing affirmative action, the ANC recognizes that virtually exclusive reliance on traditional political rights or the market will not be sufficient to address South Africa's extreme structural inequities. An affirmative action response is both essential and equitable particularly because through apartheid there has been formalized affirmative action for the White minority for more than forty years. n36

[*515] III. The Argument for Constitutionalization of the Right to Shelter

The unique and pernicious nature of apartheid requires constitutional remedies to address its despicable legacy. Apartheid was more than social exclusion and the denial of civil rights and civil liberties; it was a legalized systemic and systematic program to dispossess the Black majority of economic power. The present inequity in South Africa is not simple poverty, but a form of institutionalized inequality and deprivation based on race in which a minority of the population possesses the overwhelming majority of the country's wealth. Such a wholesale denial of economic and social rights compels their inclusion in the bill of rights that will govern a post-apartheid society.

Apartheid is the paradigmatic example of state-sponsored dehumanization and denial of political and social human rights. Racial classifications for discriminatory purposes, forced removals, torture, denial of the franchise, "Bantu" education, n37 and disparate state financing according to race each would singularly constitute a human rights violation. Collectively, they embody a "consistent pattern of gross violations of internationally recognized human rights" n38 that have wreaked physical, psychological, social and economic devastation on generations of non-White South Africans. The new South African order must categorically address apartheid's wholesale attack on human dignity by entrenching human rights in its new structures and systems.

Without commitment to a program of economic justice, South Africa's attempt to build a democratic society will be at significant risk of violent political backlash. Yet, democratic transition will also be threatened if the White minority perceives redistribution as excessive and/or arbitrary and unjust. If a post-apartheid administration [*516] fails to find the proper balance between these tensions, the nation will incur significant social costs of violence, White flight, brain drain, n39 instability and lost foreign investment, which will retard the country's development years into the future.

Constitutionalizing the need for housing is justified by the powerful rhetorical value that rights have for oppressed and marginalized groups in society. n40 While there is an extensive literature criticizing the rights paradigm as indeterminate, pacifying and marginal to social change, the rejoinder to the critique reveals the importance of rights in Page 5 28 Harv. C.R.-C.L. L. Rev. 505, *516

terms of mobilizing for social change and empowerment. Rights are both a means and an end: they mobilize and motivate, providing a base from which to struggle and an objective for which to fight.

The expectations that Black South Africans have for a post-apartheid society are similar to the faith that many Black Americans still have in the concept of rights.

"Rights" feels so new in the mouths of most black people. It is still so deliciously empowering to say. It is a sign for and a gift of selfhood that is very hard to contemplate reconstructing . . . at this point in history. It is the magic wand of visibility and invisibility, of inclusion and exclusion, of power and no-power. The concept of rights . . . is the marker of our citizenship, our participatoriness, our relation to others. n41

Neither the articulation of a right by a constitution nor the assertion of a right by an individual is by itself sufficient for progress and enrichment; however, this fact does not make the concept of [*517] rights useless. What is required is to make rights meaningful to those who have been oppressed. n42

"Rights talk" has a transformative effect that "needs talk" lacks. n43 Rights imply empowerment and obligation, whereas needs imply dependency and sympathy. In a rights paradigm, as opposed to the government acting out of beneficence, the government responds to citizens' demands founded on a sense of justified outrage and political empowerment. Considering the effects of excluding social rights from a bill of rights reveals the value of constitutionalizing such rights.

In the absence of entrenched social rights, it would be unwise to expect that values left unconstitutionalized (and thus not reinforced by the continuing processes of constitutional interpretation) could hold their own in wider political discourse. They will be marginalized and categorized as second-class arguments and those most dependent on them for basic survival and for integration into society at large will become or remain second-class citizens. n44

[*518] By only recognizing political rights, a new South African bill of rights would ignore the reality of deprivation under which most South Africans live. Much of the value of the right to vote or to free speech will be lost as South Africans remain mired in the struggle for subsistence.

In societies with extensive welfare benefits, rights are criticized for serving legitimating and regressive functions. As applied to the South African situation, this argument is unpersuasive because the pacifying tendencies that can accompany welfare-state entitlements presuppose a fairly stable society in which the entitlements serve to appease a marginalized minority. The South African context is quite distinct in that the majority suffers extreme social and economic disadvantage as a result of the wholly illegitimate system of apartheid. Consequently, the absence of rights, as opposed to their articulation, would be regressive because such silence would entrench the status quo. The entrenchment of social rights also has the potential to motivate the political participation of those traditionally excluded:

Social rights are not meant simply to entrench bureaucratic structures of the modern welfare state so that beneficiaries continue to be treated as passive recipients of state largesse. Instead, social rights ought to include rights to participate in the design, implementation, critique, and revision of measures that seek to improve material and social circumstances. As such, social rights are aimed at the material and political empowerment of the worst off insociety. n45

Some argue that social rights are fundamentally different from civil and political rights and do not belong in a post-apartheid bill of rights because they are not as amenable to judicial remedy. However, justiciability is merely one means (albeit an important one) to realize a right; the difficulties therein do not ineluctably lead to the conclusion that housing rights should not be included in a bill of rights. In its narrowest sense, a justiciable right to shelter would enable a homeless South African to bring a claim to [*519] court with the hope of promptly gaining a dwelling as a Page 6 28 Harv. C.R.-C.L. L. Rev. 505, *519

remedy. This remedy will not be immediately available. n46 Justiciability, however, can also be thought of in broader terms. For example, justiciability can include the enforcement of an individual's negative right against the state. In the context of housing, an individual could obtain injunctive relief that would prevent the government from destroying her shack or from relocating her. While such a remedy does not compel the government to act affirmatively for the benefit of the plaintiff, it provides critical protection for the plaintiff against government action and thus demonstrates the concrete value of the underlying right. Justiciability can also include a generalized remedy. Housing-related class action suits directed against the government would be judicially cognizable and could provide injunctive relief in cases where land was not being used in a manner that promoted housing for the entire population.

Many commentators assert that civil and political rights are distinct from social rights because the former are immediately realizable and virtually costless. n47 Superficially, this conclusion seems correct. Notwithstanding the logical attraction of the argument of immediate realization, reality demonstrates that civil and political rights are not immediately realizable and their implementation requires positive government action and significant expenditure. n48 Implementation of political rights is contingent upon a requisite level of economic and social development. n49 For example, [*520] effectuating the right to vote will mean establishing polling places in remote rural areas and providing information in several languages. n50 Additionally, because millions of future voters are illiterate, n51 they must be accommodated with effective voter education. The right to vote also requires security, monitoring and transportation costs. Additionally, the government must ensure that workers will not be penalized for exercising the right to vote -- they must be protected from coercion to vote for particular candidates and not risk a loss of compensation or employment.

Even in the United States of America, ostensibly the quintessential democracy, excessive registration requirements n52 are obstacles to voting and are one of the primary reasons for low voter turnout. n53 These requirements disproportionately affect people of color and those with lower incomes. n54

In addition to excessive registration requirements, the majority of jurisdictions require individuals to provide proof of residence in order to vote. n55 Consequently, the right to vote is not absolute, [*521] but dependent on the economic right to housing. n56 Even the fundamental n57 right of the franchise is not capable of costless or immediate effectuation. The immediate realizability argument thus leads one to the conclusion that neither civil and political rights nor social rights can be constitutionally entrenched.

The immediate realizability critique also presumes that civil and political rights are inherently conceptually precise and that such precision is not possible in defining social rights. However, civil and political rights are not inherently defined. For example, the parameters of the right to trial by jury were determined by historic experience, not the innate character of the right. Similarly, obligations and remedies regarding social rights can be formulated and developed over time. The inexperience with entitlements such as the right to shelter, as opposed to anything peculiar to that right, is possibly the most significant hurdle to determining what a housing right actually is or can be.

A further criticism of the constitutionalization of social rights is that it will raise expectations falsely. Yet, Black South Africans already anticipate changes that will result in tangible benefits to them. Ignoring their needs by excluding them from the bill of rights is not a means to suppress expectations, but to suppress grassroots political activism and dialogue. Cynicism toward government initiatives will be exacerbated by the presence of these rights only if the post-apartheid government does nothing to implement them. Assuming some action will be taken to effectuate the rights, cynicism will be decreased by their constitutional entrenchment.

In the absence of adequate shelter, other rights are difficult, if not impossible, to enjoy. n58 Both pragmatically and philosophically, it makes little sense to speak of the superiority of classical political rights over economic rights to a person whose human [*522] right to basic subsistence has not been met. n59 Such a distinction between rights categories discriminates against the poor, n60 which in South Africa means the Black majority. To coherently and comprehensively analyze human rights as a unified whole, both sets of rights must be considered and addressed. Page 7 28 Harv. C.R.-C.L. L. Rev. 505, *522

But embracing social rights does not necessitate devaluing civil and political rights. For example, one human rights organization analyzed the link between democratic accountability and a free press, and the incidence of famine. n61 While drought and crop failure are factors that cause famines, the lack of political rights is also a significant factor. n62 Freedom of expression enables the collection and dissemination of information about an impending famine and helps to ensure that the government will respond in a timely and effective manner. n63 Where checks on political power -- the right to protest and a free press -- do not exist, food shortages are more likely to become famines. n64

[*523] While many scholars acknowledge the significance of human needs, they find the interdependency argument unpersuasive and object to making a need such as housing a right. They deem first generation rights as absolute and second generation rights as conditional. Consequently, they see "right-ifying" a need as problematic because both political rights and social "rights" come to be viewed as being contingent upon the political and economic moment, thus devaluing first generation rights. For example, one South African professor asserts:

I do not want for one moment to deny that these are very important social goals . . . . We all want to see in South Africa a good society in which these goals can be achieved. But they are a particular kind of goal. . . . To say that "something is a matter of right", of fundamental human right, is not just to say that it is an important social good, like decent housing . . . . It is to say that it is a matter of principle, something which should be above considerations of costs, a political absolute or a trump. n65

The example of Black Americans in post-Civil War America is instructive, since it represents a scenario of continued oppression and exploitation that South Africa should avoid. While the Reconstruction Amendments to the United States Constitution ended slavery and provided Black Americans with the basis for formal equality and inclusion through the vote and citizenship, n66 Black Americans en masse were prevented from exercising the franchise until the 1960s, subsequent to the civil rights movement and the passage of the Voting Rights Act of 1965. n67 Violent intimidation [*524] by state and private actors kept Black people from the polls; other forms of social and political control were also employed to deprive Black Americans of substantive equality. The first generation right to vote was made dependent upon the payment of poll taxes and proven literacy -- illustrating the link between political and social rights. Right-ifying social needs does not devalue first generation rights. On the contrary, civil rights and civil liberties are diluted when people are not empowered to exercise them.

The present challenge of drafting a bill of rights represents the culmination of South Africa's civil rights movement. It is difficult to justify at this juncture a bill of rights that only addresses half of the Black majority's needs; a "wait and see" attitude on social rights is not appropriate. A post-apartheid bill of rights that does not reflect the interdependence of first and second generation rights would be deprived of its potential to change fundamentally the political and economic status quo. Exclusion of social rights means risking the indefinite entrenchment of neo-apartheid and leaving Black South Africans with "nothing but freedom." n68 Incorporating shelter rights in the constitution would serve the remedial purposes of contending with inequality and the prospective purpose of building a united and equal South Africa.

Many argue that social rights should not be constitutionalized, but should be included in a statement of directive principles. n69 [*525] However, while this alternative can provide symbolic potential for judicial activism and shape the basic political agenda, such an approach is insufficient. n70 Inclusion of social rights in a bill of rights requires the government and the legislature to effectuate those provisions, while directive principles merely serve as a guide to legislative, executive, and judicial decision-making. While these principles genuinely can effect government action and might be of great value, n71 they do notcommit a government to particular objectives and policies to achieve them. Thus, they can be more easily ignored by an administration and judiciary. n72 If social rights are relegated to a statement of directive principles, a government can conclude that these rights are simply moral guidelines that do not mandate action. Such a marginalization of social rights presents a particular danger in South Africa, where government structures have been used to dispossess the majority of the nation's wealth. n73

If South Africa were to constitutionalize civil and political rights but decide to treat social rights as Page 8 28 Harv. C.R.-C.L. L. Rev. 505, *525

non-justiciable, . . . it would create another kind of danger, namely that the values underpinning social rights would be devalued as a result of selective constitutionalization. A constitutional discourse could emerge that implicitly views the [*526] values protected by social rights to be illegitimate aspirations of modern governance. n74

Those rights that are not constitutionalized will inevitably be perceived as less important, particularly when the creation of democratic institutions is viewed by the majority with such profound expectations. If a new government is sincere about achieving a just future, its institutions must be compelled to act affirmatively to redress the economic disparity caused by apartheid. Entrenching social rights in the South African bill of rights will institutionalize the obligation.

Contemporary South Africa is characterized by vast social and economic inequities created and reinforced by apartheid. A post-apartheid bill of rights must not remain silent in the face of these inequities. Constitutional protection of social rights, while not a panacea, will provide an important basis for the creation of legal rules, procedures, and institutions that substantively can improve the well-being of millions of South Africans.

IV. Implementation of the Right to Shelter

The crux of the shelter issue centers on a search for practical meaning and value in "right-ifying" a human need by those who would invoke the right. It seems highly problematic to gain rhetorical value from "rights talk" without corresponding substantive change. From this perspective, the writer analyzes the practical possibilities of a constitutional right to shelter by assessing proposals for land reform and by examining South Africa's contemporary political and economic context.

The ANC's proposal of creating a land claims court to adjudicate land disputes between identifiable parties is one method of making a right to housing substantive. n75 A tribunal that was fair, non-racial and applied a range of criteria n76 to determine ownership potentially could be viewed by South Africans as legitimate. Such [*527] an approach can be problematic, however, because many of the dispossessed are so divorced from their original, historical land ownership that a claims court will be insufficient to address the tremendous problem of landlessness. n77

Another dilemma in establishing a functional land claims court results from the need to establish a standing requirement. Without these limitations, the court would be overwhelmed by millions of claims and would prove ineffective. One report suggests confining standing to those forcibly removed from land in rural areas, and excluding claims based solely on need (the vast majority of potential claims) and claims of removals under the Group Areas Act where there has been development of persons' former land. n78

The need for a standing requirement gives rise to other problems. First, a procedure that can only redress the claims of a small segment of society would inevitably be perceived as illegitimate and arbitrary. Second, if the process exclusively adjudicated the claims of those forcibly removed from rural areas, i.e., the most organized and visible segment of South Africa's dispossessed, the leadership of the land claims movement would be separated from other claimants. Furthermore, because a highly visible issue was being addressed, the process would have the initial appearance of credibly contending with the landlessness problem while only serving a narrow group. n79

The practical obstacles facing a land claims court demonstrate that the approach to the restitution of land and the provision of shelter must be multi-faceted. To address the aforementioned shortcomings of a claims procedure, the political process must supplement the courts by directly providing the homeless with land. Furthermore, compensation procedures must be established for those removed under the Group Areas Act. n80

In its proposed bill of rights, the ANC envisions land redistribution as a means to correct present landlessness and homelessness. Land that could be made available for redistribution includes: land held for speculation, underutilized or unused land, overly indebted land, and land acquired through illegal means and [*528] nepotism. n81 While justifiable in light of apartheid policies and current land distribution, redistribution will undoubtedly be resisted by Page 9 28 Harv. C.R.-C.L. L. Rev. 505, *528

many Whites. n82

The ANC's calls for land redistribution are compromised and offset by its attempt to appease Whites through its just compensation clause. n83 Market compensation to property owners may be too costly for the South African government and will continue to burden the landless. n84 While the absolute embrace of a just compensation regime would be an insurmountable obstacle preventing land redistribution, perhaps the ANC's compromise represents the political reality without eviscerating the potential for land reform. Rhetorically, the ANC's invocation of just compensation reflects some sensitivity to White minority concerns. Legally, however, the article is worded so as to create sufficient discretion in "the public interest" n85 to enable the government to effectuate some meaningful reform. Significantly, the ANC does not further compromise land redistribution through a traditional embrace of property rights. n86 Although property rights are protected, such protection is qualified and would not further advantage the haves over the have-nots. The unqualified assertion of property rights would benefit current landowners and entrench the status quo because the constitution would legitimate apartheid-era land titles. n87

[*529] The ANC proposal for housing rights presupposes a regulatory rubric. Regulation of land ownership can provide security of tenure and advance the objectives of equity and justice. Regulation can, for example, proscribe ownership of multiple farms and dwellings, prevent speculation and restrict ownership of land to habitation and productive use. n88 Although land ownership is currently regulated in South Africa and throughout the world, n89 this scheme's potential will be muted by resistance from White property owners to surrender their property. Notwithstanding this inevitable obstacle, this regulatory path should be pursued because it provides a systematic means to create a new ownership paradigm that can consistently and fairly protect all South Africans.

South Africa's political and economic n90 climate is amenable to the implementation of housing rights. One favorable factor is the emergence of the post-Cold War era. To the degree that the concept of social rights elicits fears of an external communist threat, such fears are undermined by the dissolution of the Soviet Union as a socialist power. Dialogue and policies around social rights can develop in the absence of hysteria about foreign policy concerns.

The ANC's prioritization of shelter rights is another important factor that bodes well for their progressive implementation. One United Nations expert identified deficient political will as one of several factors that prevent the realization of social rights. Transforming a need into a right creates positive law that in turn obligates political players to act against their own inertia and intransigence. The UNDP Human Development Report of 1991 stated: [*530] "The lack of political commitment, not of financial resources, is often the real cause of human neglect." n91 Moreover, the ANC's emphasis on democratic structures, access to information, and freedom of press and assembly have the potential to create conditions for democratic accountability that are critical to compelling a government to fulfill social rights.

There is reason to believe that the ANC will succeed. South Africa is adopting this right at a time of dynamic and fundamental change. As opposed to simply trying to incorporate social rights into a legal structure and culture that previously only recognized civil and political rights, South Africans are in the process of creating a new legal system. n92 It is best to establish at this point all of the government's obligations, civil and political as well as social and economic. It would be more difficult to persuade a post-apartheid government to take social needs seriously if such needs were included as rights in the constitution later, if at all. Second, because the first post-apartheid government will in all probability be dominated by the ANC, n93 serious commitment to and meaningful action towards the realization of social rights are likely. Third, sufficient numbers of Black South Africans are politicized and organized to pressure the post-apartheid government to act on its exhortations. Fourth, South Africa has a more diverse, developed [*531] and modern economic infrastructure than most if not all of these nations, n94 thereby making the full realization of housing rights more possible.

The foregoing argument does not mean to suggest that a post-apartheid government will be able to immediately fulfill the housing needs of all South Africans. In fact, the first post-apartheid administration is likely to be the target of significant animus because of its inability to immediately meet these needs. However, this likely reality is not cause to abandon social rights. Social rights are progressively realizable and as such a new administration can credibly articulate Page 10 28 Harv. C.R.-C.L. L. Rev. 505, *531

them in a bill of rights and commit the government to their achievement. Moreover, to the extent that this progressive realization requires some immediate action, inclusion of these rights can quickly be meaningful in practical ways.

Conclusion

The right to housing can be meaningful for South Africans without land and shelter. Inarguably, shelter rights are not justiciable to the same degree and in the same way as civil and political rights. Rights, however, represent more than justiciable interests. In South Africa, the right to shelter embodies human aspirations and the goals of the society. Constitutional entrenchment of the right to a decent life as articulated in a right to shelter is important. The potential rejection or marginalization of the ANC's proposed bill of rights would not render debate on social rights moot. For instance, traditional political rights could be expansively interpreted and almost certainly would provide critical procedural protections against arbitrary evictions. There are simply genuine risks to an exclusively classical rights approach and it is problematic to risk South Africa's transition to participatory democracy on political vicissitudes and a constitution that is not comprehensive.

The ANC's proposals are ambitious and the obstacles that a post-apartheid government faces are numerous and profound. The most obvious obstacles are economic limitations, the absence of a democratic and non-racist political and judicial culture, and intensified violence in both its political (by State and non-State [*532] actors) and criminal forms. n95 Will various dissatisfied factions plunge South Africa into civil war? Will rights degenerate into empty words as a result of judicial passivity and government incompetence? Will South Africa's awesome potential be thwarted and plundered by a new political elite? Additional problems include the policies of the industrialized nations: Will the United States covertly finance an insurgency against a Black majority government? Will South Africa be the recipient of generous international funding?

One would be naive to ignore these potential problems; however, one must also consider South Africa's profound possibilities. In the country's favor are its modern infrastructure, skilled labor force, diversified economy, natural resources, and ability to support itself agriculturally. Additionally, many of the people of South Africa are prepared to make the transition to a post-apartheid society work -- be they privileged Whites who have no inclination to leave or marginalized Blacks who will continue to make demands for political inclusion and distributive justice. Change in South Africa that improves the material lives of the majority will not occur overnight and progress will be followed by backsliding. While it is virtually impossible to predict what will happen, failing to test the limits in South Africa to build a unitary nation in which all of its citizens can share in its resources and growth would mean missing an opportunity to create fundamental change. The degree of progress in the country must by measured by its level of success or failure in addressing the critical problem of land and housing. This is what the ANC is attempting -- such bold and courageous efforts should be watched with hope and vigilance.

Legal Topics:

For related research and practice materials, see the following legal topics: Civil Rights LawContractual Relations & HousingFair Housing RightsGeneral OverviewConstitutional LawBill of RightsFundamental RightsGeneral OverviewInternational LawSovereign States & IndividualsHuman RightsTorture

FOOTNOTES:

n1 The Population Registration Act of 1950 (Act 30 of 1950) classified all South Africans into racial categories at birth and was repealed inJune 1991. South African Inst. on Race Relations, Race Relations Survey 1991/92 at 1 [hereinafter Race Relations Survey (year)].

The Land Acts (Native Land Act No. 27 of 1913 and Native Trust and Land Act No. 18 of 1936) and the Group Areas Act (Act 36 of 1966) were also repealed in June 1991. James Selfe, The Land Acts: The Page 11 28 Harv. C.R.-C.L. L. Rev. 505, *532

Background to Their Enactment and Repeal, Monitor, June 1991, at 59. The Land Acts relegated Africans, whom at the time of enactment made up approximately 75% of the population, to approximately 13% of the land in ten areas scattered throughout South Africa known as the "homelands." The Group Areas Act established segregated living zones by race for White, Coloured and Indian persons in urban areas.

n2 South Africa's major political parties and rivals recently resumed negotiations to determine how to manage and implement the transition to a post-apartheid society and negotiate a constitution after a ten-month stalemate when the multi-party talks broke off in May 1992. The 26 negotiating parties include such disparate groups as the National Party, the African National Congress (ANC), Inkatha, the Conservative Party and the Pan-Africanist Party. Bill Keller, Diverse Rivals Gather for Parley on South Africa, N.Y. Times, Mar. 6, 1993, at A3.

The two most powerful parties, the ANC and the National Party (the current ruling party and the architect and implementer of apartheid), have reached a compromise settlement that requires endorsement by the other participants in the negotiations. The compromise ostensibly would allow President F.W. deKlerk and the National Party to remain quite influential in running the government for five years after the end of White minority rule. The compromise agreement, if enacted, would end minority rule in April 1994. April 1994 is the scheduled date for the first elections in which South Africa's Black population would have the vote since the implementation of apartheid. At that time, a 400-seat assembly would be chosen to write a new constitution and to serve as the interim parliament for five years. The party with the most popular support would choose the president. Any party that gained at least five percent of the seats in the new assembly would be entitled to positions in the cabinet. The president would be required to obtain cabinet approval on major decisions and two-thirds approval on certain key issues. The decisions and issues requiring such approval have not yet been identified. Bill Keller, Mandela's Group Accepts 5 Years of Power-Sharing, N.Y. Times, Feb. 19, 1993, at A1.

n3 The labels "first" and "second" generation imply a hierarchy of rights that the writer does not intend.

n4 The writer will use the terms "social" rights and "economic" rights interchangeably. The writer avoids the term "welfare" rights, because in the United States, the term "welfare" connotes public financial assistance that is not rights-based.

n5 Government's Proposals on a Charter of Fundamental Rights, Feb. 2, 1993.

n6 This Note examines the recently revised (Nov. 1992) Draft Bill of Rights prepared by the Constitutional Committee of the ANC. After receiving significant comments on their previous draft published in October 1990, the ANC created the new draft, which will be finalized after comments have been received from the ANC membership. Nicholas Haysom, Democracy, Constitutionalism, and the ANC's Bill of Rights for a New South Africa, 18 Social Justice 40 (1991). Articles 11(5), 12(5) and 12(6) of the ANC Bill of Rights directly address the issue of housing. ANC Bill of Rights (Draft) (Nov. 1992).

The terms "right to shelter," "right to adequate housing," and "housing rights" will be used interchangeably in this Note.

n7 This Note uses the terms "Africans," "Blacks" and "Black majority" to refer to people of African descent, i.e., those who speak one of the ethnic African languages such as Xhosa, Zulu, Pedi, etc. and are descendants of farmers who slowly migrated to South Africa from the north at least 1700 years ago. Leonard Thompson, A History of South Africa xiii, 16 (1990). The author will employ the term "Coloured" to refer to those people Page 12 28 Harv. C.R.-C.L. L. Rev. 505, *532

who are either descendants of the Khoisan (early hunter-gatherers and shepherds who inhabited the western region of South Africa), or are of mixed racial background of the Khoisan, Whites and slaves from Asia, Malagasy (present day Madagascar), and tropical Africa. Id. at xiii-iv. The author will use the term "Indian" to refer to people of Indian descent. The author will use the term "Whites" to refer to people of European descent. Whites include: Afrikaners (constituting 60% of the White population), the descendants of the 17th-century Dutch, German and French settlers; descendants of 19th-century English settlers; and other more recently settled peoples of European descent. Id. at 33, 53-58.

The author's designations differ slightly from those formally used by the South African government. The official government classifications are as follows: "white," "native" (subsequently "Bantu," subsequently "black"), "coloured" and "Indian."

Most South Africans use the term "Black" to include all "non-White" South Africans, as a matter of convenience or for political reasons; the labels "Coloured" and "Indian" were imposed on those groups by the minority government, therefore they view the term "Black" as a politically progressive way to define themselves. The author restricts the usage of "Black" for two reasons. First, South Africa is hierarchical in terms of racial oppression, and using "Blacks" inclusively negates the distinct castes that different non-White racial groups occupy. Second, the author's analysis will focus on the African populace in South Africa, the group that has been most oppressed under apartheid. Although Coloureds and Indians are discriminated against because of race, neither group as a whole has suffered to the same extent as the African populace.

n8 Despite the emphasis on classical political rights in the United States, there is an extensive literature on economic rights. See, e.g., Robert M. Hayes, Litigating on Behalf of Shelter for the Poor, 22 Harv. C.R.-C.L. L. Rev. 79 (1987); Erma Henderson, The Case for Decent Housing: An Inherent Right 1983 Det. C. L. Rev. 1297; Frank I. Michelman, Welfare Rights in a Constitutional Democracy, 1979 Wash. U. L.Q. 659; Geoffrey Mort, Establishing a Right to Shelter for the Homeless, 50 Brook. L. Rev. 939 (1984).

n9 The 10 areas now known as the "homelands" or bantustans are the products of the Land Acts of 1913 and 1936 and the policies of former Prime Minister Dr. H.F. Verwoed, who intended to prevent African domination of the country and to foment division among Africans. Four of the "homelands," Trankei, Bophuthatswana, Venda and Ciskei, are considered independent by the South African government. The remaining six are considered self-governing. No international government recognizes the sovereignty of the "homeland" governments.

The state deprived Africans of their South African citizenship. It then divided Africans into ten ethnicity-based "national units" (North Sotho, South Sotho, Tswana, Zulu, Swazi, Xhosa [arbitrarily divided into two groups], Tsonga, Venda, and Ndebele) and assigned them to "homelands" accordingly (Lebowa, Qwa-Qwa, Bophuthatswana, KwaZulu, KaNgwane, Ciskei, Transkei, Gazankulu, Venda and KwaNdebele). These "homelands" are fragmented pieces of land scattered throughout South Africa. Whereas Whites own the most productive land of the country, the "homelands" are infertile, overcrowded, and lack infrastructure, sewerage and electrical services. They are also without significant industry and employment opportunities. See John Dugard, Human Rights and the South African Legal Order, 93-94 (1978); Laurine Platzky & Cherryl Walker, The Surplus People: Forced Removals in South Africa 109, 112-27 (1985).

n10 Race Relations Survey 1991/92 supra note 1, at 1.

n11 The data does not reflect class distinctions within the Indian and Coloured communities. Neither racial group is a socio-economic monolith and both have poor and middle-class segments. Page 13 28 Harv. C.R.-C.L. L. Rev. 505, *532

n12 Race Relations Survey 1991/92, supra note 1, at 257.

n13 Informal settlements are settlement areas within the "homelands" that are not approved or planned by the State. Housing is built by the occupants themselves, generally from inadequate materials. Platzky & Walker, supra note 9, at xii. Thus, while the government forcibly removed Africans from their homes, it did not provide housing at the relocation sight.

n14 Most of those forcibly removed by the state were Black; however, approximately 860,400 Coloured people and Indians were also forcibly relocated within South Africa's urban areas. Id. at 9-10, 16, 30-36.

In Minister of Interior v. Lockhat, 1961 (2) SA 587 (E), the plaintiff challenged the Group Areas Act on the ground that the State President was not authorized to proclaim the Group Areas in a blatantly unequal way. The court held that although the Act did not authorize discrimination, such hardship must have been intended by Parliament as the court viewed the Act as a "colossal social experiment that could be expected to cause hardship."

n15 Race Relations Survey 1989/90, supra note 1, at 56-57.

n16 Mercia Makgalemele, a Black South African lawyer, describes where he lives: "There is no electricity, sewage, refuse removal, tarred roads, social amenities and accommodation . . . . We have no sewage facilities at all. People have to make do with pit privies in this day and age -- and South Africa is so rich . . . . A lavatory is not a right, it is a privilege." Albie Sachs, A New City for a New South Africa, 19 (unpublished manuscript, on file with author).

n17 Frik De Beer, a senior lecturer in the Department of Development Administration and Politics at the University of South Africa said in June of 1989 that 56% of the African population was residing in informal settlements, which the government was doing little to upgrade. Race Relations Survey 1988/89, supra note 1, at 99. Consequently, using 1989 population figures, approximately 15.4 million Africans live in informal housing. Id. at 35.

n18 Platzky & Walker, supra note 9, at 16. Most Blacks do not consider the bantustans "home" and many have actually never set foot in their "homelands." Prior to 1986, Blacks living in and working outside of the bantustans were considered sojourners in "White" South Africa who would someday return to their "homelands."

n19 Id.

n20 A. Leon Higginbotham, Jr., F. Michael Higginbotham, S. Sandile Ngcobo, De Jure Housing Segregation in the United States and South Africa: The Difficult Pursuit for Racial Justice, 1990 U. Ill. L. Rev. 763, 778-79 (1990).

n21 The data for housing shortages reveal the number of housing units that would be needed if every family were to be accommodated in formal housing, and if present over-crowding were eliminated. Presently, most Africans are housed in "informal settlements, backyard shacks or overcrowded formal dwellings." Race Relations Survey 1989/90, supra note 1, at 100. Page 14 28 Harv. C.R.-C.L. L. Rev. 505, *532

According to Dr. Tobie de Vos, the director of the division of building technology at the Council for Scientific and Industrial Research, as of May 1990, there existed a housing shortage of 2 million units, about 90% of which were needed by African households. Id. The South African Housing Trust estimated the housing shortage in South Africa to be 3.4 million units in January 1990. Id.

n22 Id.

n23 In developing the Bill of Rights, the ANC has been influenced by the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, the European Convention on Human Rights, and the European Charter of Social Rights. The Irish, Indian, and German constitutions also inform the ANC's constitutional proposals. Haysom, supra note 6, at 40, 41, 44.

Haysom's article analyzes an earlier draft of the ANC Bill of Rights than the one examined above. The two versions do not differ to such a degree as to make Haysom's findings inapplicable.

n24 The ANC Bill of Rights unambiguously protects classical political rights. For example, Article 1 prohibits gender and race discrimination; Article 2 outlaws capital punishment and provides for the right to a fair trial; Article 3 asserts that South Africa will be a multi-party democracy and enables citizens to vote; and Article 4 protects the freedom of expression and assembly.

n25 The ANC's articulation of the right to housing is not unprecedented. The following international human rights documents of the United Nations include a right to adequate housing: the Universal Declaration on Human Rights (art 25.1), the International Covenant on Economic, Social and Cultural Rights (art. 11.1), the International Convention on the Elimination of All Forms of Racial Discrimination (art. 5 (e) (iii), the Convention on the Elimination of All Forms of Discrimination Against Women (art. 14.2 (h)), and the Convention on the Rights of the Child (art 27.3).

But see, African Charter on Human and People's Rights(Oct. 1986) (not including a right to housing).

n26 The means by which social rights are to be implemented are not limited to fulfillment through South Africa's legal structures. The private sector and other non-governmental entities also have roles to play in correcting the imbalances caused by apartheid.

n27 African National Congress, ANC Policy Guidelines for a Democratic South Africa, 1 (1992).

n28 The disaffection, hostility and pessimism bred by poverty and income disparity create an unstable foundation upon which to build democratic structures: "History suggests that increasingly polarized societies in which growing numbers are pauperized, are enormously handicapped in the search for democracy." Dharam Ghai & Cynthia Hewitt de Alcantara, The Crisis of the 1980s in Africa, Latin America and the Caribbean: An Overview, in The IMF and the South: The Social Impact of Crisis and Adjustment 13, 39 (Dharam Ghai ed., 1991).

n29 Article 11 of the ANC Bill of Rights outlines the social, educational and welfare rights to be protected and guaranteed by a post-apartheid government. It includes, among other goals: the creation of an expanding floor of minimum social, educational and welfare rights with specific attention focused on eliminating hunger, Page 15 28 Harv. C.R.-C.L. L. Rev. 505, *532

homelessness, unemployment and illiteracy and on providing universal access to water, electricity and waste disposal.

Article 12 of the ANC Bill of Rights also addresses housing rights. It includes, among other rights: that no one shall be removed from his or her home except by order of a Court that shall take into account the existence of reasonable alternative accommodations; that legislation shall provide a system of administration, ownership, occupation, use and transfer of land that is equitable; and, that legislation shall provide for the establishment of a tribunal for land claims that shall have the power to adjudicate disputed land claims based on legal or equitable grounds.

Article 17 of the ANC Bill of Rights speaks directly to the issue of implementation. Among other provisions, it includes: the establishment of a Constitutional Court that will enforce social rights and take them into consideration when interpreting statutes, the validity of legislation and the reasonableness of administrative actions; and, that the judiciary shall be transformed in such a way as to consist of men and women drawn from all sectors of South African society.

n30 Inarguably, the liberation struggle has also focused on political rights, primarily universal suffrage. For example, the ANC asserted the following:

The achievement of the vote will signal the achievement of full citizenship and legal equality for all. Elections will be a fundamental element of a democratic political life in our country. From now onwards government shall maximise popular participation and be accountable and responsible to the people.

Supra note 27, ANC Policy Guidelines for a Democratic South Africa, at 5.

An ANC member cogently articulated the relative roles of first and second generation rights in a new South Africa: "The right to eat should never be seen as antagonistic to the right to be free." Albie Sachs, A Bill of Rights for South Africa: Areas of Agreement and Disagreement, 21 Colum. Hum. Rts. L. Rev. 1, 13, 18 (1989).

n31 See Article 14(1) of the ANC Bill of Rights.

n32 Article 15, "Positive Measures," articulates the obligations of governmental and non-governmental entities to overcome apartheid.

n33 Sachs, supra note 30, at 15.

n34 Article 6(3) of the Government's Proposals on a Charter of Fundamental Rights states:

A law shall be deemed not to be contrary to subsection (2) if such law provides for special measures for the sole purpose of furthering the development and advancement of specific communities, groups and individuals to enable them to develop and realize their natural talents and potential to the full and to exercise and to enjoy their fundamental rights on a basis of equality with, and with due regard to the interests of other communities, groups and individuals.

The note following this clause asserts that the provision is needed to permit "development programmes for disadvantaged communities" and to prevent the "introduction of [M]arxist trends . . . under the . . . banner of Page 16 28 Harv. C.R.-C.L. L. Rev. 505, *532

'affirmative action.'"

n35 The government's White Paper on Land Reform promulgated in March of 1991 emphasizes the encouragement of private ownership and the end of racially discriminatory restrictions as the primary means of addressing landlessness, characterizing land restoration to those forcibly removed as "disruptive." Race Relations Survey 1991/92, supra note 1, at 381.

n36 One example is that of farm subsidies. Subsequent to the political victory of the National Party in 1948, Afrikaner farmers received massive state subsidies. Thompson, supra note 7, at 189.

Another example is health expenditures. In 1989, annual public health expenditures per capita for Whites was almost five times higher than for Africans. Annual public health expenditures per capita by racial group for 1989 were (R = rands, the South African currency): Africans (R125), Coloureds (R350), Asians (R360), and Whites (R600). South Africa Foundation, South Africa 1993, 95-96.

Whites also enjoy significantly greater public investment in education as compared to Africans: Per Capita Expenditure on Schools and Colleges 1991 (including capital expenditures) African (in White areas) R1,532 (in "homelands") 909 Coloured 2,853 Indian 3,625 White 4,504

Id. at 86 (citing Education Realities in South Africa, 1991 NATED, 02-300, (July 1992)).

n37 The Bantu Education Act (1953) provided for central government control over the schooling of Africans. According to former Prime Minister Verwoerd, the objective was to prepare Africans for manual labor:

If the native in South Africa today in any kind of school in existence is being taught to expect that he will live his adult life under a policy of equal rights, he is making a big mistake . . . . There is no place for him in the European community above the level of certain forms of labour.

Thompson, supra note 7, at 196 (quoting Roger Omond, The Apartheid Handbook 80 (Harmondsworth, 1985)).

n38 American Law Institute, Restatement of the Law Third, Foreign Relations Law of the United States § 702(g) (1987).

n39 "Brain drain" refers to the mass emigration of the highly skilled and educated class from a country.

n40 See, e.g., Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 Harv. C.R.-C.L. L. Rev. 301 (1987); Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies Page 17 28 Harv. C.R.-C.L. L. Rev. 505, *532

and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323 (1987); Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 Harv. C.R.-C.L. L. Rev. 401 (1987); but see, e.g., Alan Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978); Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363 (1984).

n41 Williams, supra note 40, at 431.

n42 Patricia Williams concludes:

In discarding rights altogether, one discards a symbol too deeply enmeshed in the psyche of the oppressed to lose without trauma and much resistance. Instead, society must give them away. Unlock them from reification by giving them to slaves.

Id. at 433 (emphasis in original) (citation omitted).

Although Williams' analysis reflects the history of Black Americans, this analysis can be applied presently and prospectively to contemporary and post-apartheid South Africa. Not protecting social rights in the South African constitution would be problematic and disempowering for those who are most disadvantaged. Furthermore, it seems appropriate that leadership that speaks for that marginalized majority should grant these needs the status of rights.

For other arguments emphasizing the power of rights, see Martha Minow, Making All the Difference: Three Lessons in Equality, Neutrality, and Tolerance, 39 DePaul L. Rev. 1 (1989) and Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives from the Women's Movement, 61 N.Y.U. L. Rev. 589 (1986).

n43 The writer recognizes that this assertion is culture specific. In less individualistic and non-Western societies, "needs talk" may resonate to a greater degree than "rights talk." While "needs talk" may be powerful, it is unclear as to whether it can be the basis for the concrete, ongoing and permanent change that "rights talk" can.

In the Western context, Patricia Williams concludes that the use of "needs" in place of "rights" by critical legal scholars such as Mark Tushnet and Alan Freeman is merely a word game that converts needs into rights: "'Need' then joins 'right' in the pantheon of reified representations of what it is that you, I and we want from ourselves and society." Williams, supra note 40, at 410.

n44 Craig Scott & Patrick Macklem, Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution, 141 U. Pa. L. Rev. 1, 35 (1992).

n45 Id. at 85-86 (citations omitted).

n46 The principle obstacle to this type of relief is the limitation of resources. Race Relations Survey 1991/92, supra note 1, at 347.

n47 See, e.g., Maurice Cranston, Are There Any Human Rights?, Daedalus 1 (1983); U.S. Dep't of State, The Problems of Human Rights, in Country Reports on Human Rights Practices for 1982, 1, 3. See generally Kenneth Minogue, What is Wrong with Rights?, in Public Law and Politics 209 (Carol Harlow ed., 1986). Page 18 28 Harv. C.R.-C.L. L. Rev. 505, *532

n48 For example, Gideon v. Wainwright, 372 U.S. 335, 344 (1962), held that the Sixth Amendment has both negative and affirmative aspects. The right to assistance of counsel prohibits the state from interfering with the ability of defendants to obtain counsel and requires the state to provide indigent defendants with legal assistance.

In S v. Rudman; S v. Mthwana 1992(1) SA 343 (A) the highest court in South Africa overruled a lower court ruling establishing a similar right to counsel. See also S v. Khanyile 1988 (3) SA 795 (N); S v. Dladla 1989 (4) SA 172.

n49 Philip Alston & Gerard Quinn, The Nature and Scope of States Parties' Obligations under the International Covenant on Economic, Social and Cultural Rights, 9 Hum. Rts. Q. 156, 164-77, 183-86 (1987).

This assertion does not, however, give governments in developing countries an excuse to claim that their denial of civil and political rights is a result of poverty. This statement means that governments must create conditions for people to exercise civil rights and civil liberties. For example, poverty is not an alibi for detention without trial; denial of the franchise; or repression of speech, assembly, or the press.

n50 In alphabetical order, the popular languages of South Africa include Afrikaans, English, Ndebele, Pedi, Sotho, Swati, Tsonga, Tswana, Venda, Xhosa and Zulu.

n51 These figures are based on the 1985 census (the most recent census was taken in 1991). According to the Human Sciences Research Council, literacy rates by racial group were as follows: Blacks, 45%; Coloureds, 68%; Indians, 80%; and Whites, 97%. For purposes of the survey, a person is considered literate if he/she completed "standard three" in school. Race Relations Survey 1986/87 at 435. This data may overstate literacy for the non-White population when one considers that at standard three, a student has only completed the equivalent of the fifth grade in the United States. Furthermore, many non-White schools are without adequate resources, further hindering literacy.

n52 Examples of barriers to registration include tight purge periods in which names are removed from registration lists if individuals do not vote for a certain period of time, strict time and date limits regulating when registration is administered, and inconvenient registration locations.

n53 Equal Access to Voting Act of 1989: Hearings on S. 675 Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 101st Cong., 1st Sess. 50 (1989). Antonia Hernandez, President and General Counsel of the Mexican American Legal Defense & Educational Fund, asserted that registration restrictions are particularly burdensome for the poor Hispanic community. Id. at 56. Frank Parker, Director of the Voting Rights Project, Lawyers' Committee for Civil Rights Under Law, concluded that registration barriers disproportionately affect Black people because of employment and the inability to travel to registration sites. Id. at 93.

n54 Barbara Jordan testified that two-thirds of eligible but non-registered voters have incomes below the national median. Id. at 50. In the 1990 Congressional elections, 63.8% of eligible White voters were registered as compared to 58.8% of Black and 32.3% of Hispanic voters. Those who actually voted as a percentage of the voting age population were as folows: Whites, 46.7%; Blacks, 39.2%; and Hispanics, 21.0%. Unemployed people are far less likely to register or vote than those who are employed. U.S. Bureau of the Census, Statistical Abstract of the United States 1992, 269 (112th ed. 1992). Page 19 28 Harv. C.R.-C.L. L. Rev. 505, *532

n55 Suzie Turner, Note, Recognition of the Voting Rights of the Homeless, 3 J.L. & Pol. 103, 104 n.5 (1986).

n56 See id. at 103.

n57 The Supreme Court has determined that the right to vote is "fundamental." See, e.g., Dunn v. Blumstein, 405 U.S. 330, 336 (1972); Reynolds v. Sims, 377 U.S. 533, 562 (1964); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).

n58 Much of the literature in human rights speaks of first and second generation rights as being indivisible. In the literature, indivisible means that there is no hierarchy between the two sets of rights. Notwithstanding this particular application of the term "indivisible," the concept is often interpreted literally as not divisible. In an effort to avoid this confusion, the writer does not use the term "indivisibility". Furthermore, the writer asserts that in an absolute sense first and second generation rights are not indivisible; one right may be enjoyed without the other. It is more accurate to posit that the rights are interdependent, interrelated, mutually supportive and reinforcing.

n59 Judge Didcott of the South African Supreme Court is opposed to constitutionalizing social and economic rights, yet remarks on their importance:

It is all very well for freedom of speech and of assembly to be guaranteed, for arbitrary arrests and detention to be outlawed, for the right to vote and to participate in the political life of the country to be secured. But these are the preoccupations of those with the time and inclination to write or read books, to make or listen to speeches, to concern themselves with public affairs, to stick their necks out. What matters more to most of the men and women living Soweto, in Gugulethu, in KwaMaushu, is a full stomach, employment, housing, health care and an education for their children.

Geoff Budlender, The Protection of Social and Economic Rights: An Overview, in Land, Labour and Human Rights 7 (1991) (Lectures at 1990 University of Capetown Summer School).

n60 Martha Jackman, The Protection of Welfare Rights Under the Charter, 20 Ottawa L. Rev. 257, 335-37 (1988).

n61 Human Rights Watch, Indivisible Human Rights: The Relationship of Political and Civil Rights to Survival, Subsistence and Poverty (Sept. 1992).

n62 Id. at 1-3.

n63 According to Amartya Sen:

The diverse political freedoms that are available in a democratic state, including regular elections, free newspapers and freedom of speech, must be seen as the real force behind the elimination of famines. Here again, it appears that one set of freedoms -- to criticize, to publish, to vote -- are usually linked with other types of freedoms, such as the freedom to escape starvation and famine Page 20 28 Harv. C.R.-C.L. L. Rev. 505, *532

mortality.

Id. at 2 (citing Amartya Sen, Individual Freedom as a Social Commitment, N.Y. Rev. Books, June 14, 1990).

n64 India is a nation that despite its droughts and extreme poverty avoided famines in 1966, 1973 and 1987. Since its independence in 1947, the Indian government has employed the Scarcity Manuals (formerly the Famine Codes), a sophisticated famine early-warning and prevention system adopted by the British authorities in the 1870s. Whereas the British authorities were negligent in enforcing the provisions of the Scarcity Manuals, resulting in the 1943 famine in Bengal that killed over 1 million people, the Indian Government has been more responsive to signs of impending famines as a result of pressures from an independent press and a politically active public. Id. at 2-4.

n65 Andre du toit, The Need and Prospects for Human Rights, in A South African Bill of Rights 50-51 (Civil Rights League ed., 1989) (emphasis in original).

n66 U.S. Const. amend. XII (1865) (outlawing slavery); U.S. Const. amend. XIV (1868) (protecting the newly freed slaves from discriminatory state legislation); U.S. Const. amend. XV (1870) (providing Blacks with the right to vote). These amendments provided the basis for formal equality and inclusion; however, they did not give rise to conditions of substantive and imminent equality for Black Americans. John Hope Frankin, From Slavery to Freedom, 251-67 (6th ed. 1988).

n67 Voting Rights Act of 1965, Pub. L. No. 89-110, 79 stat. 445 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-1 (1988)).

n68 Eric Foner, Nothing But Freedom: Emancipation and Its Legacy (1983). The title of Eric Foner's book was taken from a comment made in 1865 by a former Confederate general: "The emancipated slaves own nothing because nothing but freedom has been given to them." Id. at 6.

Thaddeus Stevens, the Reconstruction era Congressman who drafted the legislation that would have provided the newly freed slaves each with forty acres and a mule, lamented America's refusal to address the legacy of slavery:

In my youth, in my manhood, in my old age, I had fondly dreamed that when any fortunate chance should have . . . released us from obligations the most tyrannical that ever man imposed in the name of freedom . . . [we] would have so remodelled all our institutions as to have freed them from every vestige of human oppression, of inequality of rights, of the recognized degredation of the poor, and the superior caste of the rich. . . . This bright dream has vanished "like the baseless fabric of a vision."

Cong. Globe, 39th Cong., 1st Sess. 3148 (1866).

n69 See, e.g., Bertus de Villiers, Directive Principles of State Policy and Fundamental Rights: The Indian Experience, 8 S. Afr. J. Hum. Rts. 29 (1992); D. M. Davis, The Case Against the Inclusion of Socio-Economic Demands in a Bill of Rights Except as Directive Principles, 8 S. Afr. J. Hum. Rts. 475 (1992).

n70 A statement of directive principles would not be the optimal approach; however, a statement of Page 21 28 Harv. C.R.-C.L. L. Rev. 505, *532

directive principals is preferable to a stand-alone bill of rights that would be completely silent as to social rights.

n71 The directive principles that accompany the Indian Constitution do not include a principle regarding the right to shelter; however, they do provide that the State should direct its principles towards protecting the right to life and to an adequate means of livelihood. India Const. Dir. Princ. §§ 39(a), 41. In Tellis and Others v. Bombay Municipal Corporation and Others, [1987] LRC (CONST) 351, the Supreme Court interpreted the right to life in such a way as to prevent the removal of pavement-dwellers (people who lived on the city's sidewalks) in Bombay because the municipality had not established a procedure to justify their removal that was just, fair and reasonable. Because the pavement-dwellers moved to Bombay for employment and no alternative housing was made available, their removal would have violated their right to life. Id.

n72 For example, one commentator said of India, "[t]he non-justiciability of the directive principles has led to a situation where their unenforceability has been overemphasized to such an extent that the political and electoral checks originally envisaged have not fully met the promise." K.P. Krishna Shetty, Fundamental Rights and Socio-Economic Justice in the Indian Constitution 76 (1969), quoted in Bertus de Villiers, supra note 69, at 38 n.62.

n73 See, e.g., Donald Nicolson, Ideology and the South African Judicial Process-Lessons From the Past, 8 S. Afr. J. Hum. Rts. 50 (1992) (examining the role of the judiciary in enforcing apartheid).

n74 Scott & Macklem, supra note 44, at 27.

n75 See, e.g., Aninka Claassens, Who Owns South Africa? Can the Repeal of the Land Acts De-Racialise Land Ownership in South Africa?, 1991 Monitor 66, 70-71 (June 1991); Geoff Budlender, The Right to Equitable Access to Land, 8 S. Afr. J. Hum. Rts. 295 (1992).

n76 Criteria should not just be title deeds, which favor Whites, but also birthrights, length of occupancy, and productive usage. Claassens, supra note 75, at 70.

n77 Id. at 71.

n78 Edward Swanson, A Land Claims Court for South Africa: Report on Work in Progress, 8 S. Afr. J. Hum. Rts. 332, 339-41 (1992).

n79 Id. at 341-42.

n80 Id. at 342.

n81 ANC Policy Guidelines for a Democratic South Africa, supra note 27, at 32.

n82 Race Relations Survey 1991/92, supra note 1, at 383. Page 22 28 Harv. C.R.-C.L. L. Rev. 505, *532

n83 ANC Bill of Rights, Article 12.9 states:

9) Any redistribution of land or interest in land required to achieve the above objectives shall be subject to just compensation which shall be determined according to the principle of equitable balance between public interest and the interest of those whose existing titles might be affected.

ANC Bill of Rights (Draft) (Nov. 1992).

n84 Budlender, supra note 75, at 303.

n85 See ANC Bill of Rights, supra note 83.

n86 ANC Bill of Rights, Article 13 states:

1) All South Africans shall, without discrimination, have the right to undisturbed enjoyment of their personal possessions, and, individually, in association or through lawfully constituted bodies, be entitled to acquire, hold or dispose of property.

7) This Article shall be read subject to and in harmony with the provisions of Article 12.

n87 Swanson, supra note 78, at 342. Cf. Carole Lewis, The Right to Private Property in a New Political Dispensation in South Africa, 8 S. Af. J. Hum. Rts. 389, 391-92 (1992) (concluding that while the concept of property rights should be protected in a constitution, society's conception of property rights should be allowed to fluctuate in natural accordance with its changing needs). But see, e.g., Derek van der Merwe, Land Tenure in South Africa: A Brief History and Some Reform Proposals, 1989 Tydskrif Vir Die Suid-Afrikaanse Reg [TSAR] 663, 692 (asserting that the inclusion of the right to private ownership of land in a constitution could hamper the development of property rights as a response to society's evolving social and economic needs. For example, constitutionalizing rights would threaten the "continued recognition of communal tenure"); Andre van der Walt, Towards the Development of Post-Apartheid Land Law: An Exploratory Survey, 23 De Jure 1, 43 (1990) (arguing that constitutionalizing property rights will "be a major stumbling block in the way of progress towards a new land law that is characterised by social justice").

n88 Claassens, supra note 75, at 72.

n89 Id.

n90 In the short-term, the South African economy will be unable to meet the population's demand for housing. While public expenditure on shelter may be restricted as a result of economic trends, the negative obligation on the government to protect housing rights will not be undermined.

n91 United Nations Development Program Human Development Report 1 (1991).

n92 For example, if a right to housing was constitutionalized in the United States, it is likely that the Page 23 28 Harv. C.R.-C.L. L. Rev. 505, *532

positive effect of such a right would be realized incrementally. This is so because the practice of judicial review is entrenched in the United States and the courts are unaccustomed to adjudicating disputes over social rights. Moreover, there is not a mobilized grass-roots effort to demand the implementation of housing rights. Neither the legal nor the political climate is predisposed to contending with these matters. Consequently, the right's full potential would most likely be realized gradually.

A striking and important distinction between the American and soon-to-be-created South African constitutions is that the former was written by a cadre of propertied White men content on maintaining dominance over Black Americans, while the latter will be written with the input of African leadership and be significantly influenced by the concerns and priorities of the African majority. The transformative ability of the former is certainly limited by the perspectives of those who wrote it and who have interpreted it. The ANC Bill of Rights may not be similarly limited.

n93 The ANC will not have sole power and discretion in a post-apartheid government, and attempts to realize its objectives will not proceed unopposed. However, notwithstanding the power-sharing deal between the ANC and the National Party, the ANC is likely to be the dominant force in a post-apartheid administration. The deal has yet to be approved by the other participants in the multiparty negotiations. (Even if this deal is not enacted, this Note assumes that political parties other than the ANC will still have influence in the next government.) It remains to be seen what decisions will require minority approval and this, of course, could be critical.

n94 South Africa Foundation, South Africa 1993, 21 (1993).

n95 The recent assassination of Chris Hani, the Secretary-General of the South African Communist Party and an ANC leader popular in the Black townships, has given rise to significant violence. South Africa Riots Lead to Seven Deaths; Tensions Run High, N.Y. Times, Apr. 15, 1993, at A1. His killing is inherently problematic; that it may portend more assassinations and violence makes his murder more troubling.