The Constitutional

Imperatives for Comprehensive social security

The right to social securityThis submission examines the scope of

the right to social security in terms of constitutional and international law.

It also assesses the nature and scope of the obligations arising from this right, and the extent to which the proposed Basic Income Grant would assist in realising the right to social security.

Constitutional Law

The right to social security and its ensuing duties are recognised in a number of provisions in the Constitution.

S27(1)(c) provides ‘the right of everyone to have access to social security, including appropriate social assistance to those that are unable to support themselves and their dependants’.

According to s27(2), the state has a duty ‘to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right’.

Constitutional Law cont… S28(1)(c) recognises children’s rights “to

basic nutrition, shelter, basic health care services and social services”. These rights impose on the state an additional burden to prioritise children’s social security needs.

Finally, according to s7(2), the state must “respect, protect, promote and fulfill all the rights in the Bill of Rights”.

These provisions as read together provide a compelling burden upon the state to provide social security and social assistance.

International law

SA is obliged to give effect to social security in terms of, inter alia,:The Convention on the Rights of the Child;The African Charter on the Rights and

Welfare of the Child;The Convention on the Elimination of All

Forms of Discrimination against Women andThe International Covenant on Economic,

Social and Cultural Rights This right is protected in art 9 and 11 of the

Covenant – right to adequate standard of living

International Law cont... Although not ratified, the Covenant has already

become the important source of guidance to the interpretation of socio-economic rights in SA (e.g. Grootboom case).

All law, policies and programmes that affect people’s right to social security must be measured against the above constitutional and applicable international requirements.

This imperative was recognised in the Report of the Committee of Inquiry into the Comprehensive Social Security System in SA by devoting a chapter to the constitutional framework for social security.

Committee’s findings on constitutional framework The Committee made a number of conclusions that

are relevant to the constitutional obligations (already outlined).• Current social security system is inadequate, and

thus fails to satisfy the constitutional imperatives and makes the state vulnerable to Constitutional Court challenges.

The Committee recommended, inter alia, the provision on some minimum support in a form of social assistance as an affective means to reducing destitution, poverty and promote human development and sustainable livelihoods. Thus, the Committee recommended the introduction of a basic income grant.

Interpreting the right to social securityGrootboom judgment provides a landmark

guidance to the interpretation of socio-economic rights in SA.

The yardstick for assessing state’s compliance with constitutional requirements, is whether adopted measures are reasonable to give effect to a particular socio-economic right.

Grootboom outlines a catalogue of ‘constitutional principles’ for the ‘reasonableness test’:

Interpreting the right to social security These are:

– Co-ordinated, coherent and comprehensive programme.

– Provision of immediate relief for those in desperate need.

– Reasonably formulated and implemented programme.

– Progressive extension to a larger number and wider range of people

– Availability of resource – an important factor for reasonableness.

Applying constitutional principles

Applying the constitutional principles to the findings of the Committee, it is evident that the BIG is the most effective and appropriate measure to fulfill the right to social security.

Coordinated and comprehensive programThe BIG represents a coordinated and

comprehensive response to the current fragment and inequitable system.

Expanding access to social insurance scheme (UIF, COIDA) and encouraging private savings (for retirement) are important components of the comprehensive social security system, but high unemployment, decline in formal sector employment, deep levels of poverty - render the existing measures inadequate.

Coordinated and comprehensive program

Expanding social assistance to the many people that are excluded in the current system would play a major role in the comprehensive social security strategy. Thus, as the Committee findings suggests, ‘a full-take up of a BIG will reduce the number of exclusions to zero’.

Provision of immediate relief The BIG is designed to meet the basic

subsistence needs of destitute groups. Committee says the impact of BIG will be:

extreme poverty will be almost completely eliminated and the poverty gap reduced by 74%, as opposed to a mere 23% under the existing system (or 37%, assuming the full take up of the existing system grants).

Provision of immediate relief cont… The BIG guarantees a minimum acceptable

standard of living for all, which is also a goal of the White Paper for Social Welfare of 1997.

From the international obligation point of view, it fulfills the ‘minimum core obligations’ imposed under the International Covenant.

The BIG will also benefit women and children living in poverty through generating far more benefits for children as it increases the household net.

Reasonable implementation BIG meets reasonable implementation far

more effective than the current system. Barriers to the current system include means

testing and eligibility requirements. These requirements deprive a number of qualified grants’ beneficiaries. For example, research reveals that only 43% of eligible individuals actually succeed in accessing the grants.

The BIG eliminates these requirements thereby reducing administrative complexity and costs.

Reasonable implementation

The main administrative requirement for the BIG will be to devise a reliable identification and verification system.

Availability of resources...

The BIG have a significant developmental impact.

• By providing such a minimum level of income support people will be empowered to take the risks needed to break out poverty cycle.

Research indicates that a well-managed BIG is affordable and consistent with fiscal responsibility.

The Committee concluded that BIG is feasible and affordable.

Progressive realisation

People in desperate situations must benefit in the short term, but also the net benefit must be extended to a larger number and wider range of people. Thus, elimination of a means test will ensure this extensive access.

S237 requires all constitutional obligations to be performed diligently and without undue delay.

The BIG Coalition accepts that a phased approach is necessary for implementation of the BIG.

Progressive realisation

However, there must be a concrete of action for its speedy and effective implementation, including clear goals and benchmarks for measuring progress.

This plan must be devised and implemented through a transparent process involving full participation of all stakeholders (a view entrenched in the TAC judgment).

The constitutional imperatives demand that the BIG to be implemented sooner. Children’s needs must be prioritised.

ConclusionsThe current social security system is inadequate to meet various challenges facing SA. There are several gaps in the system, and assessed against the constitutional principles developed in Grootboom, the system falls short of constitutional requirements.

The introduction of a social assistance programme in the form of a universal Basic Income Grant would ensure a significant compliance with both the constitutional and international obligations ensuing from the right to social security.