CEU Electronic Theses and Dissertations, 2010
| Author | Rogers, Jackson Charles |
|---|---|
| Title | A case for judicial enforcement of positive socio-economic constitutional rights: strong-weak review, the right to free primary education and the High Court of Swaziland |
| Summary | This paper explores a recent right to primary education case that was decided by the High Court of Swaziland. The case is noteworthy because it outlines a ‘minimum core’ of content to the right to primary education in the country. While a minimum core approach is generally understood to be a relatively ‘strong’ approach to the enforcement of socio-economic rights, this paper argues that the type of judicial review exercised by the High Court was not strong enough. This argument is centred upon aspects particular to the place of the judiciary in Swazi constitutionalism: there is a ‘judicial tide’’; there is a new Bill of Rights to ‘uphold’; consecutive governments have been unable to implement universal primary education; and there is an overwhelming need for FPE to be implemented as soon as possible. At its base it is essentially structural: it contends that the High Court should take the strongest form of judicial review because the formal courts are more desirable institutions for the settlement of disputes than the traditional ones. This claim is based on grounds of procedural fairness and the development of democracy. Nevertheless, while the paper is particular to Swaziland, a number of general principles that may be of more general application are observed. First, in analyzing the scope of the right, it is contended that the ‘flexible minimum core’ does not give enough direction to the government or civil society about what the right to free primary education entails. This means that in effect the right itself remains ‘weak’. As an alternative model, a ‘benchmarked minimum core’ is advanced for consideration. Second, the limitations placed upon the judicial enforcement of children’s rights in South Africa are questioned. Third, the concerns of enforcement costs, separation of powers and vagueness in the field of positive socio-economic constitutional rights are explored. Fourth, the dialogical model is forwarded as an answer to the problem of judicial competence in the construction and implementation of socio-economic rights. Fifth, through an analysis of supervisory jurisdiction, a test is advanced of when a structural interdict (or injunction) is warranted. Finally, compliance remedies for enforcing structural interdicts are then outlined, and in particular an attempt to marry the minimum core and the ‘reasonableness test’ is made. |
| Supervisor | Udombana, Nsongurua Johnson |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2010/rogers_jackson.pdf |
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