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Access to justice must be included in the post-2015 development agenda

02 June 2015

By Commissioner Shafie Ameermia, Commissioner responsible for Access to Justice & Housing
The Constitution of the Republic of South Africa with its entrenched Bill of Rights has received international acclaim for being the most progressive legal instrument in securing human rights to date. Furthermore, an empirical study of the constitutions of the world, found that the South African Constitution is amongst the most influential benchmarks for modern constitution-making.
This means that the Constitution is a potent weapon to deal with the threat of poverty, unemployment and inequality, which are structural consequences of the apartheid legacy. However, despite the existence of our progressive Constitution, inequalities persist, particularly in the enjoyment of socio-economic rights.

 A recent report by the World Bank which compared South Africa with 11 other middle income countries found that,
“… inequality in South Africa was still higher than the other 11 countries in the sample... it (South Africa) was one of the most unequal countries in the world”.

To address these structural inequalities it therefore becomes imperative to make justice accessible, especially to the poor, marginalised and the vulnerable. Therefore, in the South African context, access to justice is an indispensable right in upholding human dignity thereby, improving, facilitating and expanding individual collective access to law and justice to ensure economic and social development. The right of access to justice is linked to the developmental agenda which seeks to address the imbalances prevalent in society. Being able to access justice must therefore be seen as a sine qua non for human development. Unfortunately, due to the prohibitive costs of legal services and the dearth of free legal assistance in civil matters, access to justice remains illusory to the majority of the vulnerable, poor and marginalised people in South Africa. According to a research, the average South African household would need to save a week’s income in order to afford a one-hour consultation with a legal practitioner.  Lamenting on this, the Deputy Chief Justice, Mr. Justice Dikgang Moseneke, noted that more often than not, “proper access to justice is often a function of one’s bank balance”.

On hindsight, the Millennium Development Goals (MDGs) contributed significantly in placing key issues of development at the epicentre of the international human rights agenda. Unfortunately, the MDGs have not been able to reduce the chasm between the ‘have-lots’ and ‘have-nots’. Those who are poor, marginalised and vulnerable, continue to be excluded from accessing justice, with those who are privileged. Therefore, the year 2015 is an opportunity to include the right of access to justice in the post- 2015 development agenda, which was a missing link in the framework of MDGs.

A specific target on access to justice will serve as a double-edged sword to those who have hitherto been living under impoverished conditions. On the one hand, it will serve as a tool for fighting inequality and accessing all human rights, and on the other hand, it will act as a protective shield to prevent people from being marginalised and being further alienated from the system.  As an institution, the South African Human Rights Commission acknowledges that being able to access justice is a fundamental right, yet non-negotiable right. The Commission recognises that the right of access to justice unlocks all the other rights in the Constitution. The right to access justice has the potential of fostering an egalitarian and transformed society where everyone’s fundamental human dignity is respected and protected.

To this end, in an attempt to promote the development of human rights, especially the right of access to justice, the Commission will be launching the Access to Justice Campaign. This campaign is informed by the fact that freedom under a constitutional democracy is meaningless if people are not free from poverty, inequality, injustice, and hunger and free to exercise their rights. Along that vein, the Commission is optimistic that a stand-alone goal on access to justice must be included in the post-2015 development agenda. The reason is because not only will a stand-alone goal on access to justice tackle inequality and poverty that is prevalent but it will also have a bearing in the fulfilment of the goals and values.

Adv. Ameermia is a Commissioner at the SA Human Rights Commission responsible for right to housing and access to justice

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