Children’s rights – Section 28 of the Constitution
The Constitution of the Republic of South Africa, 108 of 1996, is regarded as unmatched
when compared to the constitutions of other countries, because it is a rights-based
constitution.1 In rights dialogue, there are three “generations” of rights. First-generation
rights are political and civil. They are usually negative rights. Second-generation rights
involve the government’s socio-economic obligations. Frequently, these are positive rights.
Third-generation rights are often referred to as “green” rights. They are exemplified by, for
example, environmental considerations such as the right to a clean and healthy
environment. All these categories of rights are incorporated in the South African Constitution.
The three generations of rights are traditionally described as follows:
First generation = civil and political rights and freedoms (examples include, the right to life, to
vote, freedom of speech, to assemble and to demonstrate)
These rights are aimed at the protection of the citizen against arbitrary actions of the
state and they include the right to life, the right to liberty and security, the right to
privacy, the right to a fair trial, the right to equality and the right to dignity. They also
include freedom from torture and inhuman treatment, freedom from slavery and
forced labour, freedom of religion, belief and opinion, freedom of expression, freedom
of association and freedom of movement. Also included in this category are political
rights, which guarantee individuals the right to participate in their government either
directly or through elected representatives.
Second generation = social and economic rights (examples include the right to basic
services, access to housing, land, health care, education and the right to earn a living)
The second generation consists of economic, social and cultural rights. This category
is, relatively, a later growth and contains rights founded on the status of an individual
as a member of the society. Unlike first generation rights, social, economic and
cultural rights require more positive action on the part of the state to provide or at
least create conditions for access to those facilities, which are considered essential
for modern life. These rights include, but are not limited to, the right to work, the right
to fair remuneration, the right to collective bargaining, the right to property, the right
to housing, the right to education, the right to health care services, the right to social
security and the right to participate in cultural life of one's choice.
Third generation = collective rights and cultural rights; these are also called community rights
(examples include environmental rights, the right of all people to self-determination and the
right to development).
The third generation rights belong to a category that is quite recent in origin. The
emergence of this category of rights is closely associated with the rise of third world
nationalism and the realisation by developing states that the existing international
order is loaded against them. Also known as solidarity rights, these rights are
collective in nature and they depend upon international co-operation for their
achievement. Their achievement also depends on a collective effort between the
government and the people. Included in this category are the right to peace, the right
to development and the right to a clean environment.