oa ESR Review : Economic and Social Rights in South Africa - Some recent developments on justiciability of economic, social and cultural rights - feature

Volume 20 Number 2
  • ISSN : 1684-260X



I read with interest the thoughtful piece by Ayemere Okojie and Peace O. Folorunsho entitled, ‘Some recent developments on justiciability of economic, social and cultural rights’ in ESR Review (2017). It traces the origin and development of the concept of justiciability in the context of the seeming rivalry between civil and political rights (C&P rights) and economic, social and cultural rights (ESC rights). In the course of this, it cites various arguments against the justiciability of ESC rights, including that they are vague and framed as obligations rather than as rights. The article concludes, nonetheless, that these arguments apply equally to C&P rights and that ESC rights therefore ought to be justiciable to the extent that states have the capacity apply ‘political will’ across the two generations of rights.

It is not clear to me what applying ‘political will’ entails, but I can glean from the concluding remarks that the authors probably want states to ‘enact laws that make ESCR justiciable’. They also recommend ‘judicial activism’ after the manner of South African and Indian courts. As important as these recommendations are, I suspect that, to enhance the standard of living of the poor, we need to do more than transform ESCR into justiciable rights and encourage judges to be activist.

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