The Bill Of Rights
The Bill of Rights is described as the ‘soul’ of the Constitution. It is set out in Chapter 2 and it precedes, governs and defines the spirit in which all the other chapters of the Constitution are to be understood. It was designed to entrench a culture of human rights founded upon three equally important values – human dignity, equality and freedom.
All the important human rights that make up Chapter 2 were deliberately chosen. South Africa’s past denied black South Africans fundamental human rights such as the right to vote, citizenship, land, freedom of movement, education, expression and equal economic opportunity. It also saw increasingly harsh means being used to maintain the system of racial supremacy: the gallows, whippings, detention without trial, torture, banning orders and states of emergency. Chapter 2 sets out the human rights that counter the potential for these kinds of abuses to take place ever again.
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The Bill of Rights is the soul of the Constitution.
The Bill of Rights protects our human rights, which are the rights we all have just because we are human. They do not have to be earned – we have them from the moment we are born.
The best defenders of the rights of the people are the people themselves. If our system of justice is to serve the people of this country, we must … create a culture of human rights that gives South Africans both the confidence and the internalised understanding of their rights and role in society.
The Place of the Bill of Rights in the Constitution
The prominent place of the Bill of Rights in the second chapter of the Constitution is very deliberate. While respect for the supremacy of the Constitution appears in the first chapter of the Constitution, the Bill of Rights has pride of place immediately thereafter which signals the centrality of human rights in our constitutional democracy. It shows clearly that the value system as expressed in the Bill of Rights has to underpin all the chapters. If the Preamble and the founding provisions provide the historical context, then the Bill of Rights furnishes the philosophical context. Unlike ordinary legislation that can be amended at any time, the Bill of Rights seeks to entrench core values that are beyond the reach of any government that happens to enjoy a majority in Parliament at any given moment.
Structure of our Bill of Rights
The Bill of Rights has three specific parts. The first deals in general terms with their scope, legal significance and application (section 7 and 8 of the Constitution). The second part sets out specific rights that are identified for constitutional protection (sections 9 – 35). The third defines in general terms the limitation of rights, states of emergency and enforcement as well as the interpretation of rights (sections 36-39).
It is not the Constitution that creates rights. Rather, our Constitution affirms and protects the rights deemed inherent in each human being. These rights are guaranteed, which means they can never be undone, although they can be limited in a manner that is compatible with democracy. They are enjoyed equally by all human beings without discrimination. The Bill of Rights is hailed as one of the most progressive bills on fundamental rights in the world.
Two unique features of our Bill of Rights
The first unique feature is that it includes positive obligations on government through the explicit recognition of socio-economic rights and environmental rights. Unlike other Constitutions that set out the limits of the state’s power to interfere with individual liberties, ours explicitly requires that the state expends resources on providing services to the country’s inhabitants.
The second is that the Bill of Rights does not only create binding duties between the state and individuals, it also binds private parties by way of the so-called horizontal application of the rights. A company, an organisation or private individual can therefore be held to account for violations of rights. The rights in the Interim Constitution only worked ‘vertically’, meaning that just government structures had to follow them. (See more under Limitations of Rights.)
Executing the Bill of Rights
All three organs of state – the executive, legislature and judicial arms of government – are bound by the Bill of Rights in the execution of their respective responsibilities. They all have an unqualified duty to respect, protect, promote and fulfil the rights set out in the Bill of Rights. The Bill of Rights further directs that positive steps may be taken to advance persons disadvantaged by unfair discrimination.
The central point of the Bill of Rights – which sets norms, standards and values – is the foundation of a common citizenship. It safeguards rights that are equal for everybody and is seen to be crucial for the value system that informs the way the government works. The rights are guaranteed, so that all South Africans will always enjoy them in the firm knowledge that they can never be taken away.
Experience has shown that fundamental rights are particularly important for vulnerable groups that might be marginalised or for some reason do not enjoy political power, such as prisoners, immigrants and children. Experience has also shown that even the highest and mightiest in the land may be called upon to bend the knee to the values and prescripts of the Constitution. Thus, when President Nelson Mandela exercised his presidential power to grant clemency to women prisoners who were mothers of children under 12, he was informed by the Constitutional Court that in doing so he had to respect the Bill of Rights. After making this pronouncement in the Hugo case, the Court judged that his action did not comprise unfair discrimination against male prisoners with children under 12.
Similarly, President Thabo Mbeki accepted the decision of the Constitutional Court in the Treatment Action Campaign case that his government was acting in violation of the Right to Health, by refusing to roll out comprehensive antiretroviral treatment to women living with HIV about to give birth. In addition, in the Nkandla decision which compelled President Jacob Zuma to pay back the money overspent on upgrades to his private home, the Chief Justice highlighted the overall value system of the Constitution, which includes the Bill of Rights, in determining how a President of our country should conduct him – or herself.
Limitations of Rights
The rights in the Bill of Rights are not absolute. The Bill of Rights determines the circumstances in which they can be limited. Thus, freedom of speech does not allow someone to incite others to commit murder. Rights can be limited by laws adopted by Parliament, provided the limitations are reasonable and fair. Ultimately it is the Constitutional Court that will decide if the limitations are reasonable and justifiable in an open and democratic society.
The rights in the Interim Constitution only worked ‘vertically’, meaning that only government structures had to follow them, and not private parties. In the final Constitution, however, the rights work ‘vertically’ as well as ‘horizontally.’ This meant that not only the government, but also, in appropriate circumstances, private individuals, companies or other bodies would have to respect them.
Vertical application means that people could assert their rights upwards – that is in regard to any form of action by the state – whether through laws or the conduct of state officials. How then is conduct by private persons with other private persons dealt with? Here the Constitution is clear that it all depends on the circumstances (where appropriate). Accordingly, if the setting is a public one such as provision of accommodation or services by any form of government, the Bill of Rights is likely to be applicable. On the other hand, it is unlikely that a court would interfere with your preferences when you decide whom to invite to your home for dinner or who you want to marry – no matter how intolerant and discriminatory your choices might be. In extremely exceptional circumstances subject to strict procedural and institutional controls, rights can be suspended through the declaration of States of Emergency.
Rights for Everyone?
It is important to note that certain rights in the Bill of Rights such as political rights in section 19; citizenship rights in section 20; the right to a passport and to enter, remain and reside in the Republic in sections 21(3) and 21(4); freedom of trade, occupation and profession in section 22; and certain labour rights in section 23 are qualified as being available to only citizens. Other rights such as housing rights in section 26 and freedom of expression in section 16 are
designated for “everyone.”
The extent to which the “citizen designated” rights may be claimed by non-citizens has been largely untested by the courts and will vary depending on the nature of the right and nature of the violation.
Experts have also pointed out that the rights designated for everyone and not just citizens, for example the right to access to housing, do not necessarily mean that every non-citizen has an automatic right to a house at the state’s expense. It may be that in certain circumstances there is no positive obligation on the state at all in relation to non-citizens, but rather that the state has a negative obligation – that is, to ensure that non-citizens are not deprived of shelter.
We often became bogged down in specific sections or formulations as we worked. For
example, we were unsure about when to use ‘every person’ or ‘every citizen’, and about
which rights were universal and which, if any, should be limited to citizens. As all can see
in our Bill of Rights, we chose inclusion rather than exception. Ours is a Bill of Rights for all.
The Bill of Rights may only be amended by a bill passed by the National Assembly, with a supporting vote of at least two thirds of its members plus the National Council of Provinces, with a supporting vote of at least six provinces.