Economic and social rights force us to pressure a return to the state

Abstract

In 2014, five-year old South African Michael Komape fell through a broken toilet—a rudimentary pit outfitted by his school—and drowned. His case was taken up by “SECTION27”, a social justice organization in South Africa, which campaigns for constitutional rights to dignity, equality, education, health care, social assistance, food and water (the latter rights are entrenched in the Constitution’s section 27). Pursuing both a #JusticeForMichael political campaign and litigation, SECTION27 won its argument about government liability, but failed in securing a remedy for Michael’s traumatized family.

The Komape case is emblematic of the complex interaction that can occur when economic and social rights are part of an express constitutional undertaking. South Africa’s Constitution is the poster child for this kind of commitment, but all governments, everywhere, can be said to have these duties, from both the perspective of human rights and of constitutional theory. And indeed, the case itself points to three persistent challenges that accompany these duties—first, of the place of litigation amongst broader human rights campaigns; second, of the tensions between complex and individual remedies in even successful economic and social rights cases; and third, of hoary assessments of the overall impact of campaigned-for rights and duties under conditions of government dysfunction and extreme economic and social inequality.