Horizontal application of the Bill of Rights : comparative perspective

• Author: S.T. Maqakachane
• DOI: 10.10520/EJC-15923ae550
• Published date: 01 December 2018
• Date: 01 December 2018
• Record Number: lesotho_v26_n2_a1
• Pages: 1-27
• publishedBy: National University of Lesotho

HORIZONTAL APPLICATION OF THE BILL OF RIGHTS:

COMPARATIVE PERSPECTIVE

Maqakacha ne, S.T.

Abstract

The traditional public-private distinction portrays the w orld

as a continuum, the one side of whi ch is occupied by the state

and the other by individuals, with a dividing line between

public power an d private right. On this theory, human rights

act as a legal tool th at mediates between these extremes and

never between the individuals themse lves; a shield that

protects individuals against sta te power and enforceable

against the state only. The distinction forms the b asis for this

vertical application of the Bill of Rights. This paper discusses

the rise of public-pri vate distinction, the implication of the

traditional categorical approach on human rights realisation,

the fall of the dis tinction and how this p aved the way to the

horizontal application of the Bill of Rights - the application of

the Bill of Rights in pr ivate actors’ legal relation ships. The

paper unpacks the do ctrine of horizontal application of the Bill

of Rights by identifying the different variants or models of the

doctrine and the impl ications of Bill of Rights horizont ality on

the judiciary and the private actors regarding the enforcement

and realisation of human rights in t he private sphere.

LL.B (NUL); LL. M ( UFS); L ecturer, Departme nt of Pu blic Law,

National University of Lesotho; Ad vocate of the C ourts of Lesotho;

maqakachane@yahoo.co.uk.

2 LL J Vol. 24 NO. 1

INTRODUCTION

Societies’ written constitutions are expressions of an unwavering

commitment not only to break away from the unhappy past, but also to

usher into their respecti ve states the new power config urations, soc io-

political order, principles, norms and values, among others. One of the

most important chapters in a constitution is the Bill of Rights Chapter.

The primary purpose of the Bill of Rights is to introduce contemporary

principles, norms, values andstandards into the go vernance of a

country.

1

In contrast to a co nstitution itself, which commonly

prescribes whatcan be done, a constitution’s Bill of Rights normally

contains provisions on fundamental human rights and freedoms as not

only guarantees to individuals but also prescribing, what cannot be

done.

2

While the substantive conten t of any Bill of Rights is es sential, the

mode of securing these guarantees and prescriptions is of greater

importance. Precisely so, since th e effectiveness of a Bill of Rights t urns

crucially upon its context

3

and the essential conditions

4

geared towards

translating its rhetoric into reality. Impressive as it may seem, a Bill of

Rights will be of little or no impact on the lives of the people if it does

not incorporate a review mechanism to test, ensure and enforce its

compliance.

5

1

Jayawic krama, N. The Judicial Application of Human Rights Law: National,

Regional and Intern ational Jurispr udence (200 2), Cambrid ge Universit y

Press, p98.

2

Lewis, T.T . The Bill of Ri ghts (2002), Salem Press Inc. p4.

3

Strossen , N. “Translat ing a bill of rights’ paper guaran tees i nto

meaningf ul human righ ts prote ctions” in Johan Kruger and Brain

Currin (ed s) Interpreting a Bill of Rights (1994), Juta and Co. Ltd, p51.

4

Scalia, A. “Federal co nstitutional guarantees of i ndividual in th e United

States of America” in David M Beatl y (ed ) Human Rights and Judicial

Review: A Compara tive Perspectiv e (1994), Martins Ni jhoff Publisher s,

p89.

5

Jayawic krama, N. op cit. p124.