The Legal Framework: Migrants’ Status and Employment Conditions The South African constitution is the supreme law of the country47—any law or conduct inconsistent with it is invalid. The legislature, the executive, the judiciary and every organ of the state are all bound to respect, protect, promote, and fulfill the rights contained in the constitution.48 The constitution guarantees most fundamental rights to all individuals, whether they are citizens or non-citizens. Rights associated with voting, political party formation, standing for public office, obtaining a passport, entry into the country, freely choosing a trade, occupation or profession, and benefiting from state measures to foster conditions which enable access to land, are expressly limited to South African citizens.49 According to South Africa’s Constitutional Court, when the constitution intends to confine rights to citizens, it says so.50 The constitution states that “[the] Bill of Rights is the cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.”51 The Bill of Rights entrenches the rights of everyone in South Africa, inter alia, to equality before the law, human dignity, personal freedom and security, privacy, and due process of law.52 For example, everyone, including a non-citizen, who is arrested for allegedly committing an offense has the right to be brought before a court within 48 hours after the arrest, and everyone who is detained has the right, inter alia, to challenge the lawfulness of the detention before a court, and to have conditions of detention that are consistent with human dignity.53 Similarly, under international law some civil and political rights must be provided on an equal basis to nationals and migrants, either because the right is absolute or because selective denial could not be justified by the government as reasonable or proportionate. Economic and social rights for migrants, however, present a greater challenge in domestic and international law as these rights are not absolute. Fair labor practices for all workers do not present the same challenge in international law: equality of employment conditions for those in the work force, 47 The Constitution of the Republic of South Africa (No. 108 of 1996), chapter 1, section 2, http://www.polity.org.za/html/govdocs/constitution/saconst.html?rebookmark=1 (accessed July 9, 2006). 48 Ibid., chapter 2, section 8(1). 49 Ibid., chapter 2, sections 19, 21(3), 21(4), 22, 25(5). Section 37(6) and 37(7), relating to rights of detainees in a state of emergency, do not apply to persons who are not South African citizens. 50 Constitutional Court of South Africa. Lawyers for Human Rights v Minister of Home Affairs, Case CCT 18/03, para. 27. 51 The Constitution of the Republic of South Africa, chapter 2, section 7(1). 52 Ibid., chapter 2, sections 9, 10, 12, 14, 23, 26, 27, 33, and 34 respectively . 53 Ibid., chapter 2, section 35. 17 HUMAN RIGHTS WATCH VOLUME 18, NO. 6(A)