Professor Sandy Liebenberg: The Constitution’s Keeper

Unfortunately, very few people in South Africa probably even know of the United Nations Committee on Economic Social and Cultural Rights (UNCESCR), or that South Africa was represented on it. It is a committee of experts and it is testimony to her expertise that South Africa’s representative – Sandra (“Sandy”) Liebenberg – was also elected Vice President by her colleagues on the Committee.

Inevitably, however, politics plays a determinative role in elections to such bodies. In the case of the UNCESCR, elections take place in what is in effect a sub-committee of the General Assembly of the United Nations, in which 54 member states are represented. In elections during September this year, South Africa’s representative was ousted after a four-year term by the representatives of Egypt and Morocco.

In the words of an esteemed international human rights scholar this was “a terrible loss for the Committee … Such are the oddities of international diplomacy.”

“Oddities” indeed.

When I interviewed Prof Liebenberg recently she was still feeling the disappointment in her heart, but her head had already moved on to the next phase of her career.

Liebenberg’s disappointment did not come from wounded pride (she told me “I’ve never chased positions”), but from the sense of a missed opportunity to consolidate the work she had already started. She has been an advocate for international human rights law all her life, and in some ways the UNCESCR is the zenith of an activist’s dreams. It is the melting pot where its members can distill all the world’s experience in flesh-and-blood struggles for rights and turn it into guidance for states that, in incremental but important ways, entrenches human rights in the world’s realpolitik.

But now Liebenberg is squarely back in her Chair (literally and figuratively) of human rights law at Stellenbosch University, where she has been a Professor since 2004. On the day we ‘zoomed’ she was in between marking papers and presenting on a training session for human rights for activists in Eswatini.

In order to get to the present, I decided to rewind to the past.

35 years an activist

Liebenberg is clearly a giant on the human rights stage; she has been at it for more than three decades. She has books, articles and accolades to her name (her CV is 26 pages long!). She was a chair of the technical committee that assisted to draft our Bill of Rights. She has founded important human rights organisations.

But strangely, she is far less well known than other prominent lawyers we associate with human rights in South Africa. I wondered – but didn’t ask – why. Is it because she is a woman or is it because she avoids publicity?

Probably both.

Looking back, Liebenberg readily admits that she wasn’t born an activist. Her father was a magistrate and, growing up in the small town of Belfast and in Pietermaritzburg, she says she had a “conventional white South African upbringing with no politics or real exposure to the horrors of apartheid.”

But as with a small number of other white students in the 1970s and 1980s, university changed all that.

When she went to the University of Cape Town in the mid-1980s to do a law degree she became involved with organisations like the National Federation of Catholic Students that exposed her to black people’s struggles. In 1985 she helped organise a conference on Law in a State of Emergency and mentions that she attended the funeral of the Cradock Four.

It was as a result of these formative experiences that she realised that “I was only interested in law in as far as it could advance social justice” and thus began a life devoted to exploring law’s potential and limits in advancing this goal.

After leaving UCT she did a fellowship with the Legal Resources Centre (“you couldn’t do articles there in those days”) and later joined the public interest department of Bernadt, Vukic & Potash. This resulted in her being involved in a number of big anti-apartheid cases, including the Upington 26 and representing the Masiphumelele community in its struggles against then NP Cabinet Minister Piet Koornhof.

Later she joined the Community Law Centre (now the Dullah Omar Institute) at the University of the Western Cape and coordinated its Women and Human Rights Project.

However, her biggest break in rights came when in 1994 she was nominated by the ANC as one of the four constitutional experts to sit on the technical committee that advised Theme Committee 4 (Fundamental Rights) during the Constitution drafting process of the Constitutional Assembly. The others were Halton Cheadle, John Dugard and Ignatius Rautenbach.

This literally put her on the frontline of making history and her description of those two heady years still conveys all of its excitement; going through hundreds of public submissions, engaging in an “iterative writing process” with politicians; being part of public education campaigns organised by the Constitutional Assembly and civil society to publicise and influence the constitution-making process. She notes that “it should go without saying that the drafting of the Bill of Rights was a collective endeavour.”

Perhaps her most important contribution, she feels, was around the decision to include socioeconomic rights in the constitution – the fierce debates and disagreements, and her own conviction that these rights should be reflected in the Constitution because “the denial of socioeconomic rights had been such a huge part of the apartheid experience for black people.”

She reminds me that it was by no means a given; the ANC, she says, was supportive “but then the penny of realism dropped, they wanted accountability but not excessive demands that could not be met by the new democratic government.” In addition, she notes that there was significant opposition to the inclusion of these rights as judicially enforceable rights from the legal profession and academics.

Interestingly it was here, for the first time, that Liebenberg was able to practically draw on international human rights law (she had completed an LLM with distinction at the University of Essex between 1993 and 1995), referencing the UN International Covenant on Economic, Social and Cultural Rights and interacting with the Committee’s then-Chairperson, Philip Alston. She also organised for a range of international experts on socioeconomic rights to visit South Africa and to interact with members of the Constitutional Assembly, civil society organisations and academics.

After an intense and lengthy process that is beautifully recreated and documented in the recently launched ‘Our Constitution’ website and archive (a museum you can spend a day in without leaving home), the Constitution was signed by Nelson Mandela on 10 December 1996. Thereafter, Liebenberg and others could concentrate on the million ways to breathe life into it. Her choice was to continue as an academic and to use the power of research, analysis and cogent argument as a way to influence implementation and shape jurisprudence.

Caption: Sandra Liebenberg, Halton Cheadle and Ig Rautenbach with former President Nelson Mandela at a Constitutional Assembly “bosberaad/imbizo” in 1996. Photo Supplied

The ‘soft power’ of human rights law

In Shakespeare’s play Henry V the wonderfully poetic Chorus asks his audience to tolerate the play’s jumps in time as “with imagined wing our swift scene flies, In motion of no less celerity, Than that of thought” and to “eke out our performance with your mind.”

I ask you to do the same.

Between 1997 and 2004 Liebenberg continued at the Community Law Centre, setting up its Socio-Economic Rights Project in 1997 and founding the ESR Review. In 2004 she was appointed as the HF Oppenheimer Chair in Human Rights Law at the University of Stellenbosch, a position she still holds today. Over this period her CV lists four books and tens of chapters and peer reviewed articles; she was involved as an attorney in important amicus curiae interventions before the Constitutional Court, including the definitive Grootboom and TAC cases; and all the time serving as a walking, talking, human rights dictionary for a number of key social justice organisations (including, I might add, the ones I worked for).

However, the break she had not dared to dream of came when in 2016 she spotted a call for the election of two African candidates to seats on the UNCESCR – a committee, we know by now, “I had always cited and followed.” She was nominated by the Ministry and Department of International Relations and Cooperation (commonly known as DIRCO) as a candidate, and was elected the same year to serve a four-year term.

In a different world, with a different media and a different sense of what is newsworthy and valuable, Liebenberg’s election should have made the news. The CESCR is the body that oversees and interprets the meaning of the hugely important ICESCR. It has 18 expert members from different countries, is elected by 54 Member States of the UN Economic and Social Council and accounts to this body. Getting elected is no small feat. Currently, there are three other South Africans who hold similar high elected positions in UN treaty bodies: Christof Heyns (on the Human Rights Committee), Ann Skelton (on the Committee on the Rights of the Child) and Pansy Tlakula (on the Committee on the Elimination of all Forms of Racial Discrimination).

It’s also a labour of love. The position is not paid. “You still have to have a day job,” Liebenberg jokes, adding that you need to know how to work 36-hour days because the committee meets for two sessions a year for three weeks at a time in Geneva, as well as requiring extensive engagement in between.

In her four years, Liebenberg was involved in the task teams responsible for preparing a number of country reports.; participated in the development of several General Comments and in the last year was lead rapporteur on two groundbreaking statements: Leave No One Behind, the ICESCR and the 2030 Agenda for Sustainable Development and the Statement on Coronavirus Disease pandemic and economic, social and cultural rights.

Throughout her four-year term, she served as an active member on the Committee’s Working Group on Communications, which considers individual cases of violations of economic, social and cultural rights.

In 2017, she was elected the Committee’s first rapporteur for the follow-up on Concluding Observations issued to countries – an important step forward in ensuring country accountability. And in 2019-2020 she was elected to the Bureau (Management Committee) of CESCR as Vice-President.

It is no wonder then that other members of the committee say they will miss her.

Does the UN human rights system make any difference?

Given the skepticism many people feel about the UN I asked Liebenberg whether committees like this really make a difference on the ground.

Although she feels there is a need “for a systematic study of their impact” she has no doubt that they do. But she agrees that the UN systems “need greater public awareness and to make their processes more visible to stakeholders on the ground in countries.”

However, she believes that just how much impact they have depends very largely on civil society organisations’ engagement with the committees’ processes and then making full use of its statements and what are known as ‘Concluding Observations’ on country reports for human rights advocacy back at country level.

In this context she praises South African civil society organisations’ parallel reports and input into the review of South Africa that took place in 2018 and notes that they definitely had an impact on the far-reaching Concluding Observations made by the CESCR.

Being always proper and procedural, she also points out that a committee member is not allowed to participate in the review of their own country.

She also points to references to CESCR’s outputs in judgments of South African courts in SA (most recently in the right to food/school nutrition case; as well as the Constitutional Court’s Mahlangu judgment on domestic workers rights) and to the fact that South Africa’s jurisprudence is also influential on international law. For legal fundis among readers, she mentions the importance of the ‘reasonableness review’ developed in the foundational socioeconomic rights cases of Grootboom and TAC.

For all its shortcomings, what the United Nations human rights system offers us is an architect’s plan where important parts of the house remain under construction. SA, for example, only ratified the ICESCR in January 2015 and had not yet ratified its important Optional Protocol, allowing individual complaints to the Committee. Neither, for that matter, have 50 other states in Africa.

This is unfinished business and it depends heavily on activists to get states “to do the rights thing”.

Next steps

Which brings us back to where we started.

Yes, she’s “disappointed” not to have been re-elected, but notes that international politics plays a significant role in these processes, more so in the case of CESCR. (It’s an unacceptable anomaly that countries that have not ratified the ICESCR, such as the USA, still get a vote on the membership of the committee: I said that, not Liebenberg).

So, the struggle goes on.

She has been invited to contribute to a project on the constitution drafting process in Chile, after Chile’s historic vote for a new Constitution. She wants to pick up her involvement with civil society in South Africa: “we’ve hit a wall and have to find new openings”; she thinks there’s a need for reflection and research on how human rights doctrines should evolve to take better account of the major challenges facing the world – deepening economic inequalities; the erosion of public services; and the existential threat of climate change and environmental degradation. She plans to focus on these issues during the next phase of her career.

When I ask her how optimistic she is about the future of human rights, it elicits a big sigh.

But then she dives in.

She describes this as a “precarious time”. She says that the extent of corruption is “depressing, something we didn’t think about back then.” “Corruption and mismanagement of resources undermine everything the Constitution stands for, particularly its fundamental goal of building a transformed society based on social justice and human rights.”

However, she believes there is good reason to hope, particularly in “young people finding their voices and calling us to account. The challenge is how to join all these struggles together and build  sustainable movements for human rights and social justice.”

“Rights are still relevant and provide us with valuable resources and insights to support movements,” she says. Covid-19 and inequality have contributed to a stronger and stronger feeling that “people’s material conditions are a fundamental part of justice.”

Therefore, she will use her skills to advance social justice and, after all, Liebenberg is only 55, with plenty of time and energy for the next phase of her involvement. “I will go to my grave doing this work,” she says. DM/MC