Another problem with enforcing SEC rights if they are contained in the new constitution is that, like all other constitutional rights, they would have to be enforced through the courts. The courts would have to balance competing claims of fundamental social values — they might have to decide, for example, whether limited financial resources should be expended on providing clean water rather than schools — and this is not something that the courts are well fitted to do. Judges and courts lack the political legitimacy and institutional competence to decide such matters. Furthermore, the courts cannot raise revenue; that is the province of the legislature. The constitutional doctrine of separation of powers lays down that it is the function of the legislature and executive between them to decide how revenue is to be raised and how it is to be spent, and the courts must not meddle in that sphere. It would be wrong for a court to order the State to spend particular sums on, say, education, when the effect would be to reduce the revenue available for health. How SEC Rights Can be Dealt with in the New Constitution Given the difficulties in enforcing constitutionally-protected SEC rights, it is not surprising that the constitutions of countries throughout the world adopt different approaches towards these rights. Countries where SEC rights are not enforceable The constitutions of some countries — India, Ireland and Namibia, for example — set out SEC rights but state specifically that they are not enforceable through the courts. Instead, the rights are stated to be directive principles of social policy or good governance which must guide the Legislature and the Executive in making and applying laws. The effect of this depends on the approach taken by the courts in the countries concerned. The Indian Supreme Court, for example, has interpreted directive principles expansively and has ruled that the right to life includes the right to health and health care, thereby giving real legal effect to at least some economic and social rights. Constitutions where SEC rights are enforceable Other countries’ constitutions do have enforceable economic and social rights, notably South Africa, Thailand, Indonesia, Afghanistan, Brazil, Argentina, Bolivia, Ecuador, South Korea, Cuba, Kenya, Uganda, and Ethiopia. Most of the SEC rights set out in the South African Constitution are hedged about with limitations which relate to reasonableness and the availability of funds. For example, the right of access to adequate housing (set out in section 26) requires the State to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right. This formulation has two advantages: first, it makes it clear that the State is primarily responsible for providing housing; second, it recognises that the State does not have the resources to provide everyone immediately with adequate housing. Other SEC rights are subject to similar limitations. These limits are very important because they allow the Constitutional Court to give due weight to the dichotomy between a stated right — for example, “Everyone has the right to have access to adequate housing” — and the State’s inability to satisfy that right immediately. If there were no such limits there would probably be a clash between the executive and legislature, on one side, and the judiciary on the other. 27