A capabilities approach can help courts see to it that government spending is proportionate to the socioeconomic needs of vulnerable members of society, writes Dr Shanelle van der Berg of the Department of Public Law in an opinion piece published on The Conversation website on Wednesday (11 May 2016).
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Shanelle van der Berg
While almost half of the South African population lives in poverty, the lofty ideals proclaimed in our Constitution remain unattainable. For South Africa to transform into a society based on the foundational constitutional values of freedom, dignity and equality, urgent attention must be given to the fulfilment of the socio-economic rights enshrined in the Constitution. Proportionate State resource allocation directed at the swift realisation of the rights of access to housing, access to health care services, social security, sufficient food and water and education is of paramount importance to South Africa's on-going transformation project.
Recurring instances of irregular and wasteful government spending have highlighted the importance of constitutional institutions such as the Public Protector and Auditor General, civil society organisations and the media in promoting transparency and accountability. Simultaneously, the judiciary has emerged as a significant role-player in the safe-guarding of South Africa's constitutional democracy. Regarding socio-economic rights and the struggle against poverty, courts will often be required to scrutinise government budgets and prioritisation of resources to determine whether the State has met its constitutional obligation to act 'reasonably' in its efforts to progressively realise these rights.
One way to theoretically justify and practically aid courts in adjudicating government's allocative decisions, is through developing the 'capabilities approach' as advocated by Nobel laureate Amartya Sen and Chicago University Professor of Law and Ethics Martha Nussbaum. The central question the capabilities approach poses is whether people enjoy the real freedom or 'capabilities' to choose the lives they have reason to value. Our Constitution evinces a similar commitment in its preamble to 'improve the quality of life of all citizens and free the potential of each person'. For South Africans to reach their potential and lead meaningful lives, government resource allocation must fulfil socio-economic rights and eradicate the 'unfreedoms' of poverty.
The capabilities approach therefore resonates strongly with the raison d'etre for the inclusion of justiciable socio-economic rights in our Constitution. It also reflects many of the central tenets of South Africa's project of 'transformative constitutionalism' to create an egalitarian society. For judicial review of government's allocative choices to contribute to transformative constitutionalism, these common principles should be adhered to throughout the adjudicatory process.
The first feature of transformative constitutionalism that courts must observe when reviewing government expenditure decisions is that of participation. Public reasoning and agency are similarly important within the capabilities approach. Courts should therefore review allocative decisions to ensure they were made after engaging in participatory processes and that expenditure will promote participation in the political, economic and social spheres. Simultaneously, courts should facilitate participatory processes by ensuring that various parties' interests are represented before them. Courts should also promote and engage in substantive and transparent reasoning when reviewing government's expenditure priorities while government should provide explicit evidence of how it arrived at and implemented its allocative decisions. Such explicit reasoning promotes a culture of justification for all exercises of public power and requires decision-makers to provide reasons for their decisions with reference to values and ideas. Transparent reasoning also allows for subsequent public scrutiny of government and courts' evaluative judgments in prioritising resources, and can therefore lead to the formation of new social values over time. Finally, the entire process of adjudication under a transformative constitution should be informed by the fundamental values of freedom, dignity and equality underlying both our Constitution and the capabilities approach.
Most significantly, the capabilities approach can be developed into a review framework which courts can use to adjudicate complex instances of government resource allocation. Specifically, courts can use this framework as a practical aid to interpret the content of socio-economic rights in different circumstances. Thus, the overarching purpose of socio-economic rights can be conceptualised as the capability to lead a free, dignified life in a position of substantive equality with others. The social, historical and factual context of a particular case can shed further light on specific capabilities that need to be realised for achieving this overarching purpose.
For example, in order for students disadvantaged by the lasting effects of apartheid-era education policies to possess the capability to be educated, further capabilities related to learning in safe buildings, having access to learning and infrastructure facilities, and being able to access educational resources such as textbooks, will all need to be realised. Only once the entire cluster of relevant capabilities is realised, will such students have the potential to lead free and dignified lives as equal members of society. The factual context of the parties before the courts, viewed against our country's overall historical and social context, will help imbue abstract socio-economic rights with content in concrete cases.
Once courts are able to interpret the content and purposes of socio-economic rights with reference to the capabilities these rights represent in varying contexts, a measure exists to evaluate government's resource allocation and prioritisation. Amartya Sen's framework for ranking and weighting capabilities and other factors, as set out in his seminal work, Development as Freedom (1999), can be carefully adapted for judicial use in such instances. Courts can assign weight to the capabilities forming the content of a socio-economic right in a particular context. The impact of an insufficient budgetary allocation on the dignity, freedom and equality interests of the parties before the court should also be weighted. Only thereafter should a court assign weight to any justificatory arguments raised by government for its inadequate resource allocation towards the right in question.
In this way, courts can balance the weight assigned to the rights and capabilities at issue against the weight assigned to the State's justificatory arguments, including those averring resource scarcity. Where a court finds that a given allocation is disproportionate to the capability needs at stake, a violation of a socio-economic right will be established. In such a case, a court can adopt a capabilities approach to remedies by incorporating the central tenets shared by the capabilities approach and transformative constitutionalism when it crafts an order to remedy a right infringement.
If the judiciary utilises a capabilities approach to review government's resource allocation decisions, it can help ensure government spending is proportionate to the socio-economic needs of vulnerable members of our society. Where proportionate resource allocation is required at a systemic level, socio-economic rights can be effectively fulfilled and the potential of all who reside in South Africa can be unlocked.
*Dr Shanelle van der Berg holds a Mellon Early Research Career Fellowship and lectures Constitutional Law in the Faculty of Law at Stellenbosch University as part of the Socio-economic Rights and Administrative Justice Research Project. This article is based on her recent doctorate in Public Law at SU.
