Gradual implementation of socioeconomic rights: Constitutional constructivism in South Africa’s Constitutional Court

Abstract

The South African Constitution, which emerged after decades of social division shaped by apartheid, contains an ambitious project of social reconstruction, based on a proposal of substantial social inclusion through the realization of socioeconomic rights designed to build a fairer society with less inequality. Recognizing the challenges of a constitutional text that ensures a total and immediate implementation of the entire range of social rights, the strategy adopted by the Constitution was to subordinate socioeconomic rights to a progressive implementation clause. It transferred to the Constitutional Court the duty of controlling public policies in order to enforce those rights. This paper aims to analyze the so called landmark cases in socio-economic rights, systematizing the objective criteria that the South African Constitutional Court has been developing in order to ful fill its constitutional dutyin a way that contributes to improve democracy and participation, instead of simply substituting the other branches of power.

Key words: socio-economic rights, progressive implementation, transitional constitutionalism, constructive constitutionalism.