Horizontal application of the Bill of Rights : comparative perspective

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

HORIZONTAL APPLICA TION OF THE BILL OF RIGHTS:

COMPAR ATIVE 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 sta te

and the other by individu als, with a dividing line between

public p ower an d private right. On this theory, hum an rights

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

never between the individuals themse lves; a shield that

protects in dividuals against sta te p ower and enforceab le

against the state on ly. The dist inction 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 unpa cks 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 regardin g 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;

maqakach ane@ yahoo.co.u k.

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 and standards into the go vernance of a

country.

1

In contrast to a co nstitution itself, which commonly

prescribes what can 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 i s 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 i ts 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 mechan ism 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.