ARTICLES

Engaging the paradoxes of the universal and particular in human rights adjudication: The possibilities and pitfalls of 'meaningful engagement'

Sandra Liebenberg

HF Oppenheimer Chair in Human Rights Law, Department of Public Law, University of Stellenbosch, South Africa

SUMMARY

This article examines the disjunctures between the universal aspiration of human rights norms and the complexity of their interpretation and application in diverse and pluralistic contexts. It examines the extent to which a deliberative model of democracy can assist in promoting a more dialectical relationship between the universal and particular in human rights constitutional adjudication. The article further evaluates the potential of the mechanism of meaningful engagement employed by the South African Constitutional Court in the context of evictions jurisprudence to negotiate the tension between the universal normative values and purposes of human rights, and the democratic ideal of popular participation in the making of decisions which affect people's daily lives.

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* BA LLB (UCT), LLM (Essex), LLD (Wits); sliebenb@sun.ac.za. An earlier version of this article was presented at the International Association of Constitutional Law (IACL) Conference in Mexico City from 6-10 December 2010. My gratitude goes to Khulekani Moyo for research assistance, and to Gustav Muller, Margot Strauss and the anonymous referees for helpful comments. This article is based on research supported by the National Research Foundation (NRF). Any opinion, findings, conclusions or recommendations expressed in this article are those of the author and therefore the NRF does not accept any liability in regard thereto.
1 On the evolution of human rights as a political and cultural construct, see L Hunt Inventing human rights: A history (2007); S Moyn The last utopia: Human rights in history (2010).
2 Young describes 'structural injustice' as a situation in which 'social processes put large categories of persons under a systematic threat of domination or deprivation of the means to develop and exercise their capacities, at the same time as these processes enable others to dominate or have a wide range of opportunities for developing and exercising their capacities'. IM Young 'Responsibility and global justice: A social connection model' (2006) 23 Social Philosophy and Policy 102 114. For a recent account of the mobilising potential of human rights against various forms of structural injustice in Africa, see LE White & J Perelman (eds) Stones of hope: How African activists reclaim human rights to challenge global poverty (2011).
3 Universal Declaration of Human Rights, 10 December 1948, General Assembly Resolution 217 A (III), UN Doc A/810, Preamble.
4 African Charter on Human and Peoples' Rights, 1520 UNTS 217, concluded 27 June 1981; entered into force 21 October 1986, Preamble.
5 See generally R Gargarella et al (eds) Courts and social transformation in new democracies: An institutional voice for the poor? (2006).
6 For an overview, see S Gloppen et al (eds) Courts and power in Latin America and 132 See in this regard Sachs J's eloquent description of the unique dynamics of each eviction dispute in Port Elizabeth Municipality (n 41 above) para 31.
7 Other critiques of rights expose how the claims of human rights law and practices to ideological neutrality obscure how particular interpretations of rights advance distinct ideological projects. See IG Shivji The concept of human rights in Africa (1989), ch 1 & 2; M Mutua Human rights: A political and cultural critique (2008).
8 There exists a vast literature traversing critical legal studies, legal anthropology, and development studies which engages the critique of rights and exposes and engages the tension between universalism and particularism in human rights discourse and law. A small sample of this literature includes M Tushnet 'An essay on rights' (1984) 62 Texas Law Review 1363; PJ Williams 'Alchemical notes: Reconstructing ideals from deconstructed rights' (1987) 22 Harvard Civil Rights -Civil Liberties Law Review 401; J Kirkemann Boesen & HO Sano 'The implications and value added of a human rights-based approach' in BA Andreassen & SP Marks (eds) Development as a human right: Legal, political and economic dimensions (2010) 45; AA An-Na'im (ed) Cultural transformation and human rights in Africa (2002); M Goodale & S Engle Merry (eds) The practice of human rights: Tracking law between the global and the local (2007).
9 W Brown States of injury: Power and freedom in late modernity (1995).
10 K Baynes 'Rights as critique and the critique of rights: Karl Marx, Wendy Brown, and the social function of rights' (2000) 28 Political Theory 451 457.         [ Links ]
11 The coming into force of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights (1998), OAU/LEG/EXP/AFCHPR/PROT (III) in 2004 has created renewed impetus for the project of developing the normative content and effective enforcement of the rights in the African Charter.
12 On the distinction between direct and representative democracy, see J Cohen & C Sabel 'Directly-deliberative polyarchy' (1997) 3 European Law journal 313 320-321.         [ Links ]
13 On the distinction between strong and weak forms of judicial review and managerial versus other forms of judicial role conceptions, see M Tushnet Weak courts, strong rights (2008) 18-42; KG Young 'A typology of economic and social rights adjudication: Exploring the catalytic function of judicial review' (2010) 8 International journal of Constitutional Law 385.         [ Links ]
14 See, eg, Habermas's critique of Dworkin's conception of the judge as Hercules operating within 'the solitude of monologically conducted theory construction'. J Habermas Between facts and norms: Contributions to a discourse theory of law and democracy (1998, trans W Rehg) 223-225; See also the analysis of critics of judicial review by C Zurn Deliberative democracy and the institutions of judicial review (2007) 4-6 141-161.
15 Cohen & Sabel (n 12 above) 324.
16 See, eg, A Sachs 'The judicial enforcement of socio-economic rights: The Grootboom case' (2003) 56 Current Legal Problems 579 587-589 (locating the courts' institutional capacity to adjudicate socio-economic rights in the capacity of judges to pronounce on conditions of life undermining human dignity).
17 See Dixon's critique of a strong judicial role in determining the 'minimum core' of socio-economic rights. R Dixon 'Creating dialogue about socio-economic rights: Strong-form versus weak-form judicial review revisited' (2007) 5 International journal of Constitutional Law 391 401 -402 416-417.         [ Links ]
18 See Baynes (n 10 above) 457; D Brand 'The "politics of need interpretation" and the adjudication of socio-economic rights claims in South Africa' in AJ van der Walt (ed) Theories of social and economic justice (2005) 17.
19 For accounts of the difficulties which legal normative frameworks and mechanisms encounter in responding to the complexity of intersecting forms of disadvantage, see K Crenshaw 'Demarginalising the intersection between race and sex: A black feminist critique of anti-discrimination doctrine, feminist theory and antiracist politics' (1989) University of Chicago Legal Forum 139;         [ Links ] J Conaghan 'Intersectionality and UK equality initiatives' (2007) 23 South African journal on Human Rights 317.         [ Links ]
20 Aggregative, representative models are premised on determining majority preferences of elected representatives through mechanical methods such as counting votes. See, eg, the account by Zurn (n 14 above) 73-76 of the differences between aggregative and deliberative models of democracy. According to Cohen & Sabel (n 12 above) 321, the essential distinction between representative and more direct models of democracy lies, not only in the level of participation, but the topic on the agenda: 'Direct democracy requires decision on substance, whereas representative democracy involves choice on legislators who decide on
21 There have been numerous attempts to explain and justify the 'counter-majoritarian' dilemma of constitutional review within systems of representative democracy. For a review of the major theoretical positions, see Zurn (n 14 above) 31-67.
22 S Benhabib 'Towards a deliberative model of democratic legitimacy' in S Benhabib (ed) Democracy and difference: Contesting the boundaries of the political (1996) 69 explains the key premises and features of a deliberative democratic model as follows: 'According to the deliberative model of democracy, it is a necessary condition for attaining legitimacy and rationality with regard to collective decisionmaking processes in a polity, that the institutions of this polity are so arranged that what is considered in the common interest of all results from processes of collective deliberation conducted rationally and fairly among free and equal individuals. The more collective decision-making processes approximate this model the more increases the presumption of their legitimacy and rationality.' Zurn (n 14 above) 70 places 'reasons-responsiveness' at the core of deliberative conceptions of democracy. He goes on to note that 'deliberative democracy does not just stress reasoned civil discussion - it stressed politically relevant and effective reasoned discussion.'
23 Benhabib (n 22 above) 69.
24 Benhabib (n 22 above) 78.
25 As above.
26 As above. See also Zurn (n 14 above) 229-232; R Alexy 'Discourse theory and human rights' (1996) 9 Ratio juris 209-235.
27 See Habermas (n 14 above) 118-131.
28 Thus Benhabib (n 22 above) 79 notes that 'the precise meaning and entailment of the norms of universal moral respect and egalitarian reciprocity are subject to discursive validation'.
29 Benhabib (n 22 above) 79.
30 As Baynes (n 10 above) 463 observes, in Habermas's discourse theory 'the system of rights is universal, not in the sense that it specifies a pre-given set of natural rights, but rather in the sense that it presents a general schema or "unsaturated placeholder" that legal subjects must presuppose if they want to regulate their living together by positive law. It is thus constitutive of the legal medium, yet at the same time, it is not fixed or determinate. The system of rights must be developed "in a politically-autonomous manner" by citizens in the context of their own particular traditions and history.' Baynes refers in this context to Habermas (n 14 above) 125 128-129.
31 T Roux 'Democracy' in S Woolman et al (eds) Constitutional Law of South Africa (2006) ch 10, 14-15 18.         [ Links ]
32 See Benhabib (n 22 above) 78-79; N Fraser 'Social justice in the age of identity politics: Redistribution, recognition and participation' in N Fraser & A Honneth Redistribution or recognition? A political-philosophical exchange (2003) 7 44-45.         [ Links ]
33 One of the most sophisticated analyses of the intersecting axes of participatory parity - redistribution, recognition and political participation - in contemporary capitalist societies is provided by Fraser (n 32 above) 7 229-223; see also N Fraser 'Social exclusion, global poverty, and scales of (in)justice: Rethinking law and poverty in a globalising world' (2011) 3 Stellenbosch Law Review 452.
34 According to Cohen, 'a deliberative conception puts public reasoning at the centre of political justification'. He describes the public reasoning that distinguishes deliberative democracy as the advancement of reasons in deliberation which 'others have reason to accept, given the fact of reasonable pluralism and the assumption that those others are reasonable'. See J Cohen 'Procedure and substance in deliberative democracy' in Benhabib (n 22 above) 95 100.
35 Benhabib (n 22 above) 73; IM Young Inclusion and democracy (2000) 24.
36 See Cohen (n 34 above) 100.
37 Young (n 35 above) 44.
38 See Benhabib (n 22 above) 81-82. Fraser refers to a heterogeneous, dispersed network of many publics as well as 'subaltern counterpublics'. See N Fraser 'Rethinking the public sphere: A contribution to the critique of actually existing democracy' in C Calhoun (ed) Habermas and the public sphere (1992) 109 121-123.
39 Benhabib (n 22 above) 79.
40 See generally Zurn (n 14 above).
41 Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) para 39 (Port-Elizabeth Municipality).
42 Zurn (n 14 above) 242.
43 For a discussion of these tendencies in the context of socio-economic rights adjudication, see S Liebenberg Socio-economic rights: Adjudication under a transformative constitution (2010) 39-42.
44 Reliance on the doctrines of separation of powers and deference are common judicial strategies for deferring to the institutions of representative democracy. See K McLean Constitutional deference, courts and socio-economic rights in South Africa (2009); D Brand 'Judicial deference and democracy in socio-economic rights cases in South Africa' (2011) 22 Stellenbosch Law Review 614.         [ Links ]
45 For accounts of how rights emerge from and in turn influence community and social processes, see S Mnisi Weeks & A Claassens 'Tensions between vernacular values that prioritise basic needs and state versions of customary law that contradict them' (2011) 22 Stellenbosch Law Review 823; J Perelman & KG Young, with the participation of M Ayariga 'Freeing Mohammed Zakari: Rights as footprints' in White & Perelman (n 2 above) 122.
46 Port Elizabeth Municipality (n 41 above) para 39.
47 In Government of the Republic of South Africa & Others v Grootboom & Others 2001 1 SA 46 para 34 (Grootboom), the Constitutional Court drew attention to the close interrelationship between the three subsections of sec 26.
48 For an analysis of these criteria, see Liebenberg (n 43 above) 146-163. The Constitutional Court has confirmed that the duty of relevant organs of state (such as local authorities) to ensure the provision of temporary alternative accommodation applies even when occupiers are evicted by private parties. See City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 2 SA 104 (CC).
49 On the development of evictions law under the influence of sec 26(3), see AJ van der Walt Constitutional property law (2006) 410-419; Liebenberg (n 43 above) 268311.
50 Port Elizabeth Municipality (n 41 above) para 43.
51 Port Elizabeth Municipality (n 41 above) para 39.
52 The significance of participation was grounded in respect for the human dignity and 'personal moral agency' of occupiers. Port Elizabeth Municipality (n 41 above) para 41.
53 2008 3 SA 208 (CC).
54 Olivia Road (n 53 above) para 5 (interim order para 1).
55 Olivia Road (n 53 above) para 5 (interim order para 3).
56 Olivia Road (n 53 above) para 5 (interim order para 4).
57 Rent was to be calculated at 25% of the occupiers' income and the occupiers were allowed to stay in the property until permanent accommodation became available to them.
58 Settlement agreement between City of Johannesburg and the Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg dated 29 October 2007 (copy on file with author). The terms of the engagement order are summarised by the Court in Olivia Road (n 53 above) paras 24-26.
59 Olivia Road (n 53 above) para 27.
60 In Grootboom (n 47 above) para 17, the Court held: 'Every homeless person is in need of housing and this means that every step taken in relation to a potentially homeless person must also be reasonable if it is to comply with section 26(2).'
61 Grootboom (n 47 above) paras 18 & 22.
62 Olivia Road (n 53 above) para 14.
63 Olivia Road (n 53 above) para 18.
64 Olivia Road (n 53 above) para 19.
65 As above.
66 Olivia Road (n 53 above) para 15.
67 Olivia Road (n 53 above) para 20.
68 As above.
69 Olivia Road (n 53 above) para 21. This gives expression to transparency as a relevant criterion in the assessment of reasonable action by the state in realising socio-economic rights. See Minister of Health v Treatment Action Campaign (No 2) 2002 5 SA 721 (CC) para 123.
70 Olivia Road (n 53 above) para 21.
71 As above.
72 Olivia Road (n 53 above) para 23.
73 Olivia Road (n 53 above) para 45.
74 Olivia Road (n 53 above) para 54 (order para 6).
75 For a detailed account of the engagement process by the skilled public interest lawyer representing the occupiers, see S Wilson 'Planning for inclusion in South Africa: The state's duty to prevent homelessness and the potential of "meaningful engagement"' (2011) 22 Urban Forum 1.
76 The Community Law Centre (UWC) and Centre on Housing Rights and Evictions (COHRE) were joint amici curiae in both the Supreme Court of Appeal and the Constitutional Court. See their amicus curiae submissions on-line at http://www.constitutionalcourt.org.za/Archimages/10661.PDF (accessed 15 May 2012).
77 Olivia Road (n 53 above) paras 7, 9 & 39. See G Quinot 'An administrative law perspective on "bad building" evictions in the Johannesburg inner city: City of johannesburg v Rand Properties (Pty) Ltd' (2007) 1 ESR Review 25.
78 Olivia Road (n 53 above) para 38. A court may grant an order for the eviction of unlawful occupiers in terms of PIE at the instance of organs of state if it is in the public interest to do so (sec 6(1)(b)). The public interest is defined as including 'the interest of the health and safety of those occupying the land and the public in general' (sec 6(2)).
79 Olivia Road (n 53 above) paras 32-36.
80 Olivia Road (n 53 above) paras 34-35.
81 As above.
82 Olivia Road (n 53 above) para 35.
83 These dangers are evident in the manner in which the Constitutional Court applied meaningful engagement in the matter of Mamba v Minister of Social Development CCT 65/08, Court Order dated 21 August 2008. See B Ray 'Proceduralisation's triumph and engagement's promise in socio-economic rights litigation' (2011) 27 South African journal on Human Rights 107 111 122.
84 See nn 24-27 above and accompanying text.
85 Olivia Road (n 53 above) paras 27-30.
86 Olivia Road (n 53 above) para 30.
87 See n 33 above and accompanying text.
88 See, in this regard, the discussion by Ray of the proposals emerging from a Roundtable Discussion on Meaningful Engagement in the Realisation of SocioEconomic Rights. Ray (n 83 above) 107 116-120; B Hepple 'Negotiating social change in the shadow of the law' (2012) 139 South African Law journal 248 256 (forthcoming). Bishop cautions, in this context, that the institutionalisation of engagement processes may serve to undercut more radical forms of participatory democracy. M Bishop 'Vampire or prince? The listening constitution and Merafong Demarcation Forum & Others v President of the Republic of South Africa & Others' (2009) 2 Constitutional Court Review 313 361-364.
89 On the importance of substantive reasoning in the interpretation of rights guarantees within a deliberative democracy conception of transformative constitutionalism, see Liebenberg (n 43 above) 44-51.
90 Housing rights scholars have emphasised the importance of these substantive normative markers in the context of meaningful engagement. See L Chenwi '"Meaningful engagement" in the realisation of socio-economic rights: The South African experience' (2011) 26 South African Public Law 128 152-154; K McLean 'Meaningful engagement: One step forward or two back? Some thoughts on joe Slovo' 223 238-239.
91 2010 3 SA 454 (CC).
92 The other 30% was to be reserved for residents of backyard dwellings in Kwa-Langa.
93 The income of the majority of the families in the Joe Slovo settlement was below R3 500 per month. See joe Slovo I (n 91 above) paras 31 -34 (per Yacoob J); para 307 (per O'Regan J); paras 371-376 (per Sachs J).
94 Thubelisha Homes & Others v Various Occupiers & Others Case 13189/07 (C) (10 March 2008).
95 The Court summarised the grounds on which all the justices agreed that the order should be made. joe Slovo I (n 91 above) paras 1 -10.
96 Sachs J concurred in the judgment by Moseneke DCJ.
97 Langa CJ and Van der Westhuizen J concurred in the judgment of Yacoob J.
98 Moseneke DCJ and Mokgoro J concurred in the judgment of Sachs J.
99 joe Slovo I (n 91 above) para 7 (Order para 4).
100 joe Slovo I (n 91 above) para 7 (Order paras 9-10). As Mbazira observes, the detailed prescriptions in the Court's order concerning the nature and standard of alternative accommodation to be provided stands in stark contrast to other cases where the Court has been unwilling to engage with the substance of what adequate housing entails, even at a minimal level. C Mbazira 'Grootboom: A paradigm of individual remedies versus reasonable programmes' (2011) 26 South African Public Law 60 79.
101 joe Slovo I (n 91 above) para 7 (Order para 17).
102 joe Slovo I (n 91 above) para 7 (Order paras 5 and 11).
103 joe Slovo I (n 91 above) para 16.
104 joe Slovo I (n 91 above) para 378 (per Sachs J, footnotes omitted).
105 Olivia Road (n 53 above) para 19.
106 See joe Slovo I (n 91 above) para 117 (per Yacoob J). In a similar vein, O'Regan J writes that fair process 'should not result in unnecessary and prolix requirements that may strangle government action' (para 296).
107 See n 71 above and accompanying text.
108 See CF Sabel & WH Simon 'Destabilisation rights: How public law litigation succeeds' (2004) 117 Harvard Law Review 1016.         [ Links ] The African Commission on Human and Peoples' Rights has also required participation or dialogue between states and communities in implementing its recommendations in certain communications relating to socio-economic rights and the right to development. See Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) para 71; Sudan Human Rights Organisation & Another v Sudan (2009) AHRLR 153 (ACHPR 2009) para 229; Centre for Minority Rights Development & Others v Kenya (2009) AHRLR 75 (ACHPR 2009) para 251.
109 McLean (n 90 above) 241.
110 Apart from its own previous jurisprudence in Olivia Road, important normative criteria could have been derived, eg, from the UN Basic Principles and Guidelines on Development-Based Evictions and Displacement, developed under the auspices of the UN Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living. See UN Doc A/HRC/4/18, 5 February 2007 (Annex 1).
111 Residents of joe Slovo Community v Thubelisha Homes 2011 7 BCLR 723 (CC) (joe Slovo II).
112 joe Slovo II (n 111 above) para 28.
113 joe Slovo II (n 111 above) para 30.
114 As above.
115 As above.
116 joe Slovo II (n 111 above) para 36.
117 joe Slovo II (n 111 above) para 29.
118 joe Slovo I (n 91 above) para 244.
119 On the significance of listening (as opposed to merely 'hearing') in participatory and deliberative democratic processes, see Bishop (n 88 above) 323.
120 One would ideally have wished to have a more detailed description and analysis of the engagement process with the Joe Slovo community regarding the upgrading of the settlement, specifically in relation to the decision to relocate the residents as opposed to pursuing an in situ upgrade. Nevertheless, some of the abovementioned defects in the engagement process can be gleaned from the following paragraphs in the judgment: joe Slovo I (n 91 above): paras 28-34; para 109 (per Yacoob J); paras 166-167 (per Moseneke DCJ); paras 245-247 (per Ngcobo J); paras 297-304 (per O'Regan J); paras 378-384 (per Sachs J).
121 See Muller's characterisation of meaningful engagement as a deliberative democratic partnership drawing on Arnstein's ladder of citizen participation. G Muller 'Conceptualising "meaningful engagement" as deliberative democratic partnership' (2011) 3 Stellenbosch Law Review 742 753-756.
122 2010 2 BCLR 99 (CC). This decision was handed down less than a month before judgment in joe Slovo I was handed down.
123 Abahlali (n 122 above) para 69.
124 Abahlali (n 122 above) paras 113-115.
125 For a nuanced exploration of the systemic potential of meaningful engagement, see B Ray 'Extending the shadow of the law: Using hybrid mechanisms to develop constitutional norms in socio-economic rights cases' (2009) 3 Utah Law Review 797.         [ Links ]
126 Cohen & Sabel (n 12 above) 335.
127 In Grootboom (n 47 above) para 41, the Court held, in adopting the reasonableness model of review for positive socio-economic rights, that 'it is necessary to recognise that a wide range of possible measures could be adopted by the state to meet its obligations'. See also art 8(4) to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UN General Assembly Resolution A/ RES/63/117 (5 March 2009) (not yet in force).
128 For a more in-depth exploration of the potential of structural interdicts, see generally Sabel & Simon (n 108) above; Liebenberg (n 43 above) 424-438.
129 See, however, its appearance in a recent case concerning education rights, Governing Body of the juma Musjid Primary School v Essay NO 2011 8 BCLR 761 (see particularly paras 63-65 and para 76, including the Order of the Constitutional Court dated 25 November 2010 replicated at footnote 87 of the judgment). There are also unresolved questions regarding the relationship between meaningful engagement and procedural fairness in administrative law. See Quinot (n 77 above); Muller (n 121 above) 745-752.
130 C Lefort 'Human rights and the welfare state' in C Lefort (ed) Democracy and political theory (1988) 39;         [ Links ] C Lefort 'Politics and human rights' in JB Thompson (ed) The political forms of modern society: bureaucracy, democracy, totalitarianism (1986) 250.         [ Links ]
131 Baynes (n 10 above) 460.
132 See in this regard Sachs J's eloquent description of the unique dynamics of each eviction dispute in Port Elizabeth Municipality (n 41 above) para 31.