Constitution of South Africa Chapter 2: Bill of Rights
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Chapter 2 of the 1996 Constitution of South Africa is a bill of rights. It protects negative and positive rights of all people against the government of South Africa, including its executive, legislative and judicial branches, and some provisions (such as the ones guaranteeing equality rights) provide rights against the actions of other persons.
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[edit] Features
The Bill of Rights contains detailed provisions concerning civil, political, social and economic rights. These rights are subject to limitations set out in section 36, which stipulates that limits on rights must be reasonable and must have an important objective. Limits should also be "less restrictive." Security of the person and a "right to freedom" in section 12 are defined broadly as including a right to trial, freedom from cruel and unusual punishment, psychological security, reproductive control, and rights against forced scientific experiments.
Freedom of religion in section 15 also includes a right to government-provided places of worship, as long as those places are run in such a way that membership is equal. Freedom of expression in section 16 extends to the right to research scientific questions, but is not meant to protect war propaganda or hate speech.
Economic and social rights start with section 22, the freedom of occupation. Section 24 provides a right to a healthy environment, and section 26 provides rights to housing. Section 29 offers educational rights in all of the official languages, depending on individual preference.
[edit] Comparison with other human rights instruments
The limitations clause under section 36 has been compared to similar clauses in the European Convention on Human Rights. Specifically, there are limits on privacy rights (Article 8(2)), "except such as is in accordance with the law and is necessary in a democratic society", limits on freedom of thought and religion (art. 9(2)), "subject only to such limitations as are prescribed by law and are necessary in a democratic society," etc. In Canada a Canadian Charter of Rights and Freedoms was adopted in 1982. Section 1 of that Charter, like section 36 of the South African law, states that rights are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."[1]
In full, section 36 reads,
- 36. (1)The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including
- (a) the nature of the right;
- (b) the importance of the purpose of the limitation;
- (c) the nature and extent of the limitation;
- (d) the relation between the limitation and its purpose; and
- (e) less restrictive means to achieve the purpose.
- {2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
[edit] References
- ^ Brice Dickson, "Human Rights in the 21st Century," Amnesty International Lecture, Queen's University, Belfast, 11 November 1999.
