South Africa: Progressive Realization

The concept of “progressive realization” came up at several points during our visits today, particularly at the South African Human Rights Commission and the Legal Resources Center. The socioeconomic rights in the South African Constitution are somewhat criticized as being something less than “real” because they are framed in terms of access (e.g., “the right to access to housing”) and the government is not tasked with directly granting them access, but only toward working to their “progressive realization.” South Africans respond to this by saying that they are real rights, though a person may not have access to a house, the people have a right to holding the government to this obligation of working toward this progressive realization. Though the legislative and executive branches of the South African government have made assertions about the meaning of this concept and their obligations, the South African judiciary has been hesitant about fixing a particular definition to it. Now South African jurists and leaders must decide what progressive realization should require or whether there is some utility to leaving the definition vague. At the South African Human Rights Commission, I was told that defining progressive realization would help replace the “reasonableness” standard currently applied by the Constitutional Court toward the government’s actions in relation to these rights. Progressive realization might provide a more efficient, fact-based, goal-oriented way of providing guidance to the government, rather than the reasonableness standard. There seems to be a ready analogy between the reasonableness standard and this progressive realization as rational basis review and stricter standards of scrutiny found in US jurisprudence, though progressive realization may have a different relationship with respect to input/output of the legislation than our stricter standards of scrutiny. I cannot help but think that this concept brings up issues between policy and the law. Perhaps the indefinite nature of progressive realization might serve to be an outlet for political expression by the people or the rest of the government. As the concept of progress may change for the people of South Africa, they may choose to change what the concept requires, rather than waiting for the Constitutional Court to overturn its jurisprudence. For an extended discussion of the concept: “Demystifying the Progressive Realization of Socioeconomic Rights in South Africa” by Cameron Lee Jacobs, Senior Researcher, South African Human Rights Commission.

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