The Children’s Institute has gained valuable insight into the challenges of realising children’s socio-economic rights through appropriate policies and laws since the predecessor to the Institute – the Child Health Policy Unit – was established 10 years ago. One such challenge is the lack of clarity on the meaning of children’s socio-economic rights in Section 28 of the Bill of Rights in the South African Constitution.

Interpreting a constitutional right is like analysing a poem. It was written in the past but it is a living text that must respond to the present and move us towards our vision for the future. The author’s choice of words tells us about the past and about the vision for the future, while the reader’s present needs and future expectations are added to the mix in crafting the final meaning. Therefore, the past, the present and the vision for the future need to be considered when interpreting the meaning of a right.

In drawing on the past, the story of the making of Section 28, the children’s clause in the Bill of Rights, was explored in a paper presented at the Fourth World Congress on Family Law and Children’s Rights. The story of making the South African Constitution has been extensively written about and presented around the world. Particular rights, such as the right to life or the right to property, have led to much legal debate and writing. The debates about these rights have always taken cognisance of the genesis of the right concerned: Why was the right included in the Bill of Rights? How was the right violated in the past? What past violations were the architects of the Constitution aiming to prevent from happening again and what did they envision for the future? In contrast, very little has been written about the genesis of the children’s rights clause, especially Section 28 (1) (c), which addresses children’s rights to basic nutrition, shelter, basic health care services and social services.

When interpreting a right, the courts tend to explore the genesis of the right by looking at its history and the vision for the future. However, when dealing with children’s rights, this has not happened to date. The Constitutional Court has had two opportunities in the Grootboom and Treatment Action Campaign cases to elaborate on the meaning of Section 28 (1) (c). However, the Court did not investigate or elaborate on the genesis of the right when interpreting Section 28 (1) (c).

Children’s rights tend to be easily supported but not so easily understood or implemented. Part of the reason is precisely because children’s rights are quickly and easily supported. No-one wants to be seen to oppose children’s rights; hence debates on the actual meaning of these rights seldom occur. Glib references to children’s rights and ‘children as the future’ abound in many policy documents but in reality the substance, and therefore the realisation of children’s basic socio-economic rights, remains somewhat elusive.

Legal writing and court judgements elaborating on the genesis of children’s constitutional socio-economic rights could contribute to describing the rationale and substance of the rights, and could take us forward in making support for children’s rights a reality.

The paper sketches the debates surrounding the drafting of the children’s clause in the 1993 and 1996 Constitutions, the initial expectations of Section 28, and the Constitutional Court’s interpretation of Section 28. It further elaborates on the challenges faced by policy-makers, legislators, child rights advocates and service providers in putting into practice South Africa’s commitment to prioritise the realisation of children’s socio-economic rights. It also makes some practical recommendations to facilitate the realisation of children’s socio-economic rights as a priority by drawing on the genesis of the rights and tools stemming from international law instruments.