Austerity in the midst of a pandemic: Pursuing accountability through the socio-economic rights doctrine of non-retrogression

Abstract

Abstract This article examines the potential of the socio-economic rights doctrine of non-retrogression to hold the state accountable for policies of fiscal consolidation (‘austerity measures’) in South Africa. These policies threaten to erode many programmes and institutions critical to the delivery of the socio-economic rights recognised in the Constitution. The article provides a contextual analysis of fiscal consolidation policies in South Africa both in the lead up to and during the Covid-19 pandemic. It examines the nature of the doctrine of non-retrogression in international human rights law, and considers how the doctrine could be translated into South Africa’s existing jurisprudential framework on socio-economic rights. It concludes by considering how the procedural and participatory dimensions of the non-retrogression doctrine can play an important role in alleviating the institutional tensions involved in the judicial review of retrogressive measures. Ultimately, the article seeks to demonstrate that the doctrine of non-retrogression provides a framework and set of principles that can advance greater accountability for rights-eroding budgetary decisions.