Economic and Social Rights in Transitional Justice: A View from Cape Town’s Informal Economy

Economic and social rights are often ignored in transitional justice processes. In the pursuit of restorative justice in the aftermath of mass violence and major human rights abuses, political and civil rights are instead prioritized as a means of providing concrete legal protections and ensuring de jure equality before the law under a new social contract predicated on inclusion and human dignity. While these are indeed crucial, the neglect of economic and social rights can ultimately prove costly. This is perhaps most clear in South Africa, where the end of apartheid enshrined the political and civil rights of non-white South Africans while doing little to address the economic legacies of apartheid. As a result, South Africa remains the most unequal country in the world, and high levels of direct and structural violence persist. This paper explores the failures of South Africa’s transitional justice process by examining the governance of informal economic activity in Cape Town. It illustrates how informality is driven by the racialized forms of extreme poverty and inequality that are the legacy of apartheid as individuals engage in informality due to a lack of viable alternative livelihood sources and formal employment opportunities. Similarly, the challenges that they face surround inadequate demand as potential customers cannot afford the goods that they sell. The governance of informal economic activity, however, frequently relies on the coercive use of force through the use of policing and other regulatory measures despite claiming to promote empowerment, inclusive decision-making, skills training and financial assistance. Engaging in the informal economy as a means of livelihood support is not recognized as a right despite the fact that those who do so lack other options for meeting their basic needs. The country’s legal and constitutional system, despite significant reforms since the end of apartheid that have aimed to enshrine equality, offer inadequate protections. Cape Town remains divided as the livelihoods of its poor residents are valued less than the concerns of its middle-class residents surrounding unfair competition and urban aesthetics. These socioeconomic divisions have significant spatial dimensions as laws are often selectively enforced and the poor are physically excluded from the wealthier areas of the city, a separation that entrenches the geographical inequalities of the apartheid era and undermines the pretense of legal neutrality and universality. Social and economic rights must therefore complement political and civil rights in transitional justice processes if human rights are to be realized in the aftermath of major violations and sustainable and inclusive peaceful settlements are to be reached. The two groups of rights must be seen as complementary rather than competing and together serve as core elements of transitional justice.