Social Rights in the Constitution: Towards Effective Equality for Women in South Africa

South Africans are in the process of drafting their final Constitution which, like the interim Constitution, will contain an entrenched and justiciable Bill of Fundamental Rights.'One of the central issues under debate is whether social and economic rights should be included in this Bill of Rights as justiciable rights on the same terms as civil and political rights.There have been submissions from the public to the Constitutional Assembly that social and economic rights should be excluded from the final Bill of Rights or incorporated in a form which is not fully justiciable, such as Directive Principles of State Policy.These submissions have emanated both from organisations representing business interests and from organisations of civil society on the political left. 2 On the other hand, there have been a number of nongovernmental organisations involved in issues of housing, development, health, social welfare, and rights for women that have *Senior Research Officer, Women and Rights Project, Community Law Centre, University of the Western Cape, July 1995.I wish to thank the Swedish International Development Agency (SIDA) whose generous support for our Project made the research for this paper possible.'The interim Constitution of the Republic of South Africa (Act 200 of 1993) was the outcome of the negotiations leading to the political settlement in South Africa [hereafter, the interim Constitution].It is intended as a transitional Constitution, pending the passing of the final Constitution by the Constitutional Assembly.This must occur within two years of May 1994, the first sitting of the National Assembly in South Africa (s.73(l)).The final Constitution must comply with a schedule of Constitutional Principles attached to the interim Constitution (s.7 1).One of these Principles requires that "all universally accepted fundamental rights, freedoms and civil liberties" shall be provided for and protected by entrenched and justiciable provisions in the Constitution (Constitutional Principle 11, Schedule 4). 2 Submissions to this effect were received by the Constitutional Assembly from, inter alia, the Council of Southern African Bankers (17 February 1995), the Chamber of Mines (Public Hearing of 1 August 1995) and the Congress of South African Trade Unions (COSATU) (3 June 1995).Not all sectors of the business community are opposed to the inclusion of social and economic rights in the Constitution.Thus at a Public Hearing on Social and Economic Rights hosted by the Constitutional Assembly on 1 August 1995 the National Federated Chamber of Commerce (NAFCOC), representing Black business interests, indicated support for their inclusion in the Constitution.