Revisiting the role of the judiciary in enforcing the state’s duty to provide access to the minimum core content of socio-economic rights in South Africa and Kenya
Author: Justice Alfred Mavedzenge
Affiliations: Research Fellow at the Democratic Governance and Rights Unit of the University of Cape Town, and a Legal Advisor at the International Commission of Jurists
Source: Journal of Comparative Law in Africa, Volume 7 Issue 2, p. 60 – 89
Although the realisation of the full scope of each socio-economic right is meant to be achieved progressively, Kenya and South Africa have an international obligation to immediately provide vulnerable persons with access to the minimum core of each of these rights. As revealed (again) by the COVID-19 pandemic, the two states are in violation of this obligation as millions of people in both countries are living in abject poverty, without access to the bare necessities. Attempts to enforce the government’s minimum core obligations have failed at least three times in South Africa, and the Court of Appeal in Kenya has hesitated to enforce these obligations. Relying on the doctrinal review of jurisprudence from both countries and international law, this article proposes that, in order to enforce the minimum core obligations without violating the separation of powers doctrine, the judiciary must be perceived to have a primary role and a secondary role. The primary role of the court must be to enforce meaningful engagement between the state and the rights bearers in determining the quantitative aspects of the minimum core content of each right. Once the state has developed this core content, the court can review its reasonableness by measuring it against the qualitative minimum standards imposed by the right. In circumstances of urgent need, where the state has failed to develop a reasonable quantitative minimum core content and rights bearers are in danger of suffering irreparable harm, the court should invoke its secondary role which entails setting the quantitative minimum core content to be provided by the state as a temporary measure.