Giving effect to the right to participatory democracy in the area of socio-economic rights

Abstract

Disadvantaged communities are disproportionately affected by the persistent failures of government to deliver services, especially at local level. The South African Constitution demands progressive realisation of socio-economic rights, subject to available resources, and the Constitutional Court has interpreted our democracy to include both representative and participatory elements. This thesis examines how the public’s right to participatory democracy can be employed to enhance the delivery of socio-economic rights. It engages with three platforms for participation: first, the obligation of Parliament and provincial legislatures to involve interested members of the public in their legislative and other processes; second, the meaningful engagement mechanism developed by the Constitutional Court to oblige local authorities to engage with unlawful occupiers facing eviction; and third, the various opportunities for community participation created in local government legislation. The focus of the thesis is on how the Constitutional Court, as the ultimate guardian of the Constitution, has positioned itself with regards to the other branches of government and how it has used its remedial powers innovatively to develop the right to participation, to protect socio-economic rights and to guide transformation. From the judgments reviewed, it is clear that there are multiple failures of process and implementation at all levels of participation and that existing platforms for participation are under-used. The thesis seeks direction from Western democratic theories and African theory and practice. Locally, guidance is sought from three informal participatory events in our history: the drafting of the Freedom Charter; informal governance under the United Democratic Front and Mass Democratic Movement; and the constitution-making process. At national level, the inquiry covers the Court’s interpretation of the substantive and procedural aspects of the right to public involvement, the corresponding obligation to facilitate public involvement, and what constitutes reasonable public involvement. The focus then shifts to avenues for participation at local government level. Both with regards to the Court’s judgments on meaningful engagement and the judgments dealing with local participatory platforms the emphasis is on how local authorities should interact with the communities they serve. The inquiry further covers international guidelines and best practices on the effect of corruption and governance failures on socio-economic delivery; the benefits of decentralisation and the strengthening of local authorities to improve access to basic services; and draft guidelines on the effective implementation of the right to participate. It also discusses two international experiments in participatory budgeting and decentralised planning. Drawing from these sources, the thesis concludes with guidelines for ameliorative reforms.