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Utility of Cross-Cutting Rights in Enhancing Justiciability of Socio-Economic Rights in the African Charter on Human and Peoples’ Rights
TAKELE SOBOKA BULTO[∗]
In contrast to the protection and supervision established under the relatively older human rights systems of the Inter-American and European regions, the normative framework and preconditions for the justiciability of economic and social (socio-economic) rights[1] emerged almost fully blown in the African human rights system.[2] Justiciability, a concept denoting the suitability of a case for judicial or quasi-judicial scrutiny,[3] rests on three normative preconditions: the claim, the setting and the consequence of the claim.[4] The claim is about (the violations of) the rights guaranteed in a particular rights regime. The main regional human rights instrument, the African Charter on Human and Peoples’ Rights (‘Charter’ or ‘African Charter’),[5] has given express recognition to a selective list of important socio-economic rights.[6] It has also omitted to explicitly provide for a few socio-economic rights,[7] and its catalogue of socio-economic rights is just ‘modest.’[8] The setting is the judicial or quasi-judicial body with a jurisdiction to hear and review violations of the rights protected. The African Commission on Human and Peoples’ Rights (‘Commission’ or ‘African Commission’), under its protective mandate, has been empowered to receive communications from state and non-state entities which are invariably entitled to bring the communications to the Commission and locus standi is virtually unlimited.[9] The consequence of the finding of a violation of Charter-based guarantees — including socio-economic rights — entails the ordering of remedies by the Commission.[10] The three-pronged test of justiciability has thus been cumulatively met, and the justiciability of socio-economic rights has been ripe since the establishment of the Commission in 1987. Besides, the Commission has unequivocally asserted that ‘there is no right in the African Charter that cannot be made effective.’[11]
Such notwithstanding, the degree of justiciability (as well as enforcement) of Charter’s socio-economic rights have always played second fiddle to that of the traditional civil and political rights.[12] Over two decades after the coming into force of the Charter, the African Commission has received merely two communications — the SERAC[13] case and the Purhoit[14] case — principally dealing with socio-economic rights out of the nearly 400 complaints it has decided since its establishment in 1987.[15] Heyns aptly observes that the civil and political rights of the Charter to date ‘constitute the daily staple of regional and, and indeed domestic, human rights mechanisms.’[16] The socio-economic rights of the Charter have hitherto been marginalised[17] and have been consigned to a ‘second-rate status.’[18] This is in stark contrast to the Charter’s promise of indivisibility, interdependence and interrelatedness of human rights that has been also the rallying point for the Commission, academics and human rights activists alike.
This paper seeks to demonstrate that the justiciability of socio-economic rights in the African system of human rights has been hampered primarily by the slow pace of normative development of the relevant rights.[19] As a result, the relatively obscure normative content of the rights means that it becomes significantly more difficult for activists and litigants to ‘spot’ the breaches with ease and specificity. Arguably, this has been a ‘push factor’ in using direct justiciability of the rights in question. The main objective of this paper is to argue that the justiciability of socio-economic rights of the African Charter could greatly benefit from the use of other overarching rights such as the equality guarantee, the right to judicial protection and remedies and the right to due process as a means of proving violations of socio-economic rights. This paper argues that such an indirect approach[20] carries a potential of enhancing justiciability of the socio-economic rights enshrined in the Charter. Firstly, experience has shown that not only in the regional and global human rights treaty systems, but also in the domestic sphere socio-economic rights ‘more commonly receive indirect protection.’[21] The experiences of the Inter-American[22] and European[23] systems of human rights show an added advantage of the use of this approach. Under Articles 60 and 61 of the Charter, the Commission is enjoined to ‘draw inspiration’ from the treaties and works of the other regional and universal human rights systems. Secondly, unlike the typical socio-economic rights, the cross-cutting rights to equality, judicial protection and due process guarantees have been concretely and repeatedly relied upon by the Commission. Thirdly, their broad application is not usually disputed as they have been part and parcel of the local jurisprudence of states. Fourth, the use of the indirect approach would help reveal many of the hidden — or implicit — aspects of (the violations of) socio-economic rights. Finally, the indirect approach is a means of operationalising the indivisibility, interdependence and interrelatedness of human rights that has been the hallmark of the Charter from its inception.[24] Whenever a given socio-economic right is infringed, it usually leads to, results from or is accompanied by the violation of one or a combination of the right to equality, the right to judicial protection and the right to due process. A redress to the latter could also remedy violations of socio-economic rights.
Part 2 presents a brief justification, functions and merits of justiciability of socio-economic rights. In Part 3, I argue that the expansive interpretive latitude of the Charter alongside its adoption of the indivisibility, interdependence and interrelatedness of human rights means that socio-economic rights litigation could help explicate the ‘latent’ socio-economic contents of the Charter. Part 4 contrasts the normative possibility of direct justiciability of the Charter’s socio-economic rights with the minimal use made of it. It argues that the gulf between the legal possibility and the prevailing mediocrity of direct justiciability can be bridged by indirect justiciability. Part 5 is an analysis of the indirect approach to enhance socio-economic approach. In this part, three overarching rights — the right to equality, the right to judicial protection and remedies and the right to due process — have been selected to illustrate the indirect use of (predominantly civil and political) overarching rights to enhance the justiciability of socio-economic rights. Conclusions in Part 6 complete the study.
As outlined above, one of the principal reasons for the subdued state of socio-economic rights supervision and justiciability in the African regional system is the relative lack of jurisprudence and normative clarity related to the rights in question.[25] The rights traditionally placed in civil and political category took root in domestic struggles for human rights from which they eventually evolved into international law rules.[26] The journey for socio-economic rights has been along the reverse route. Compared to the traditional civil and political rights, socio-economic rights are latecomers to the international scene. They emerged much later than the civil and political rights whose standards had gone through long processes of progressive development, norm clarification and judicial scrutiny.[27] The socio-economic rights have originally appeared in the international instruments such as the Universal Declaration of Human Rights and others before they found their way into domestic legal systems. [28] Emerged as they have from international law, they have yet to be fully embraced by the domestic legal and institutional systems. In many African constitutions, they are either placed under Directive Principles of State Policy (DPSP), and hence non-justiciable per se, or they are not provided for altogether.[29] Consequently, the ratification of the Charter alone without domestic justiciability may be of little assistance in the search for domestic remedies and the enjoyment of the rights at the local level may still be illusory. Indeed, the lack of case law means that the understanding about the ambit, core content and consequent state duties relative to socio-economic rights have stagnated in many jurisdictions across Africa. The consequence has been that the violations of socio-economic rights have not been easy to identify, complain about and prove that a particular right is violated. The ultimate result is the underutilisation of direct justiciability of socio-economic rights.
The enhanced justiciability of socio-economic rights at the regional level plays some crucial roles. Firstly, it would have the effect of enhancing the domestic justiciability of the same (and indeed all) sets of rights. This is because domestic judicial organs can scarcely ignore the developments of international law relative to the cases before them.[30] The Charter seeks to ensure its own domestic implementation mainly via two avenues. First, it empowered the Commission to set standards and formulate ‘principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms.[31] The expectation is that the domestic courts and tribunals will emulate the Commission’s example in interpreting and applying human rights norms at the domestic level. Indeed, studies have shown that the emergent regional jurisprudence of the African Commission has had its impacts on the domestic adjudication of human rights issues.[32] Secondly, the Charter contemplates that the principles and rules on human and people’s rights and freedoms ‘formulated’ and ‘laid down’ by the Commission would provide a basis upon which ‘African Governments may base their legislation.’[33] It would also help the Commission kill two birds with one stone: the interpretation and jurisprudence that would emerge from socio-economic litigations would boost the promotional mandate of the Commission by elaborating some of the Charter’s vague socio-economic rights and freedoms, making it possible for the protective and promotional roles of the Commission to mutually reinforce each other.
Secondly, an enhanced justiciability of socio-economic rights would boost their domestic enforcement and implementation. As Tveiten observed, ‘[t]he effective implementation of economic, social and cultural rights … depends in part on whether these rights are treated as justiciable.’[34] According to Alston:
[t]he mere possibility that complaints might be brought in an international forum is likely to encourage governments to ensure that more effective local remedies are available in respect of economic and social rights issues (thus making it less likely that the international forum will be able to accept jurisdiction). For the same, reason, in8dividuals are given an incentive to explore potential domestic remedies with which they might not otherwise have bothered.[35]
Similar reasons lie behind the sustained efforts towards the development of progressively justiciable socio-economic rights in the Inter-American and European systems and the global level. At the global level, such efforts have recently culminated in the adoption of the Optional Protocol[36] to the International Covenant on Economic, Social and Cultural Rights (ICESCR),[37] whose main supervision system has almost entirely been dependent on the non-adversarial state reporting procedure.
Thirdly, the justiciability of socio-economic rights enhances the progressive development of associated norms under the Charter.[38] Despite the ratification of the Charter in all member states of the African Union (AU), many of the state parties to the Charter are still either recalcitrant or ambivalent about their socio-economic duties that are entailed by the act of ratification of the Charter. Consequently, with the exception of few jurisdictions such as South Africa, socio-economic rights are not grounded in significant bodies of domestic jurisprudence.[39] Thus socio-economic rights jurisprudence generally does not benefit from the history of domestic adjudication or judicial scrutiny in Africa. Some of the socio-economic rights would thus be litigated before the African Commission for the first time. Such a scenario would inevitably presents the Commission with the opportunity (and a challenge) of examining domestic violations of socio-economic as a tribunal of first instance. As Busia and Mbaye noted, ‘the Commission should exercise original jurisdiction on economic and social rights since individuals cannot be expected to exhaust domestic remedies which do not exist.’[40]
Indeed, it is due to the Commission’s decision in the SERAC case that students of human rights can now confidently argue that there are indeed the right to food and the right to housing. In this case, the Nigerian Government was accused of allowing and aiding the activities of the consortium of the government owned Nigerian National Oil Company and Dutch Shell Company in the Niger Delta region. The leakage of oil and chemicals from the Consortium’s oil fields caused huge spoliation of drinking water, destroyed plants and animals (food sources) and damaged general health (including reproductive heath) of the indigenous Ogoni people of the Niger Delta. Opposition by the Ogonis and national and international human rights activists to the Consortium’s activities was met intimidation and harassment by government military forces that killed and imprisoned the local people and destroyed houses. The ensuing SERAC case complained about massive violations, including the rights to housing and food. Notably, there is no mention of the right to food or housing under the Charter in explicit terms;[41] yet innovative approaches to the rights by the litigants and purposive interpretation of the Charter by the Commission has helped establish implicit rights from the more explicit guarantees such as the right to life and dignity.[42] In a case involving Zambia, the Commission stressed that ‘it is only to the extent that the Commission is prepared to interpret and apply the Charter that Governments would appreciate the extent of its obligations and citizens understand the scope of the rights they have under the Charter.’[43]
Granted that the adjudication and resultant jurisprudence of socio-economic rights have yet to take root in a great majority of domestic jurisdictions across the Continent, ‘the fate of economic, social and cultural rights under the African Charter is bound up with the prospects of the African regional human rights mechanism generally.’[44] Thus, the mere existence of justiciable dimensions to the socio-economic rights adds to the level of understanding about socio-economic rights as legal rights enjoying the characteristic of validity.[45] In the final analysis, even minimal judicial invocations of socio-economic rights could further a more general understanding that these rights have relevance as a matter of law and cannot be relegated into mere moral or political aspirations.[46]
Fourth, the justiciability of socio-economic rights is a means of ensuring state accountability and the culture of justification. Perhaps it goes without saying that in many parts of Africa, the impoverished state of the lives of millions of Africans is primarily due to misguided state polices and rife corruption.[47] While it has to go hand in hand with the rule of law, independent, impartial and competently functioning judiciary and availability of resources, justiciability contributes towards ensuring state accountability. As Viljoen asserted, ‘[u]sed effectively, justiciable socio-economic rights may go as far as to expose the distortion in a state’s financial (budgetary) priorities. Its application may be most incisive where a state does not allocate its available resources to realise socio-economic rights.’[48] In Ethiopia, for instance, the national military budget in 2006 was 10 times the national water and sanitation budget, which is indicative of the states’ failure in allocating the recommended minimum 1% of their national budget thereto.[49] Justiciability thus subjects state policies, decisions and budgetary and other resource allocations to an impartial judicial and quasi-judicial scrutiny.[50] It is thus seen as a very strong means of ensuring state accountability.[51]
Fifth, the injury-specific remedies that would result from litigation on socio-economic rights violations would make justiciability an extremely useful and attractive supervisory method. Unlike, or more than other supervisory procedures, the complaints procedure brings more specific, concrete and tangible issues into relief. Alston observed that in socio-economic litigations the ‘real problems confronting individuals and groups come alive in a way that can never be the case in the context of the abstract and arid discussions that arise in the setting of the reporting procedure.’[52] As is widely known, the state reporting system — in the Charter and elsewhere — is used to gauge the overall gamut of human rights performance by a state and generally does not aim at remedying specific violations.[53] Even so, the reporting procedure under the Charter has not been performing effectively: there are, amongst others, non-reporting, inadequate quality of reporting, and late reporting.[54] Its main teeth — the mobilisation of shame — have been too weak a threat to ensure compliance.[55] At the time of writing, 14 of the 53 state parties to the Charter have never submitted any of their biennial reports to the African Commission on their human rights performances at the domestic level.[56] There are many more states that owe the Commission numerous overdue reports, thereby refusing to subject their performance to international scrutiny. In addition, the traditional pattern of the reporting system by its very nature is a cyclical mechanism in which states report at fixed intervals depending upon the periodicity of the treaty concerned.[57] In contrast, the use of the communications procedure of the Charter would enable the victims to obtain remedies that are particularly designed to redress their specific complaints.[58]
Finally, justiciability of socio-economic rights is a means for reclaiming equality for the marginalised and impoverished groups of people who have no other viable avenue or financial resource to influence political decision making processes.[59] It is perhaps the most viable means through which they can voice their grievances and oppose systemic exclusions that they face. As Craven forcefully argued, it is the ‘socially peripheral — the marginalised, the disposed, or subaltern’ who stand at the centre of the socio-economic rights discourse.[60] Agbakwa suggests that socio-economic rights in Africa are the main means of reclaiming humanity (as protective of the poor and the marginalised sections of societies).[61] In a similar vein, Kunnemman concurs in that socio-economic rights ‘are the only means of self-defence for millions of impoverished and marginalized individuals and groups all over the world.’[62] Justiciability of socio-economic rights is, therefore, a means of ‘claiming adjudicative space’ for the poor and the weak.[63] A story of a lawyer, representing a Kenyan community, who were facing forced evictions from a squatter settlement, makes the point starkly clear:
Members of the community had asked for advice about launching a court action to challenge the planned eviction as a violation of the right to housing. He [the legal counsel] had to tell them that given the state of the law and the orientation of the court, the case was virtually hopeless. Still, the group insisted, they wanted to go to court to challenge the eviction, so they proceeded with the legal challenge. … On the day the judge’s decision was to be handed down, all the members of the community showed up at the court, filling it to overflowing. When the judge appeared and began to read the judgment, he could scarcely be heard. En masse, the group began to sing and dance in celebratory fashion. They had lost the case, as it turned out, but whatever the judge’s view of the legal merits of their claim, their celebration affirmed the success of a more fundamental claim to occupy an adjudicative space in which they were able to at least give voice to a challenge to a violation of human rights which they hoped would someday be recognized by courts.[64]
The idea of enhancing justiciability of socio-economic rights in Africa is therefore not just a matter of academic exercise. It is closely related to the lives of millions of impoverished people across the continent. There is thus an urgent need to search for innovative means of enhancing justiciability of the rights in the Charter.
As briefly outlined at the outset, Charter’s socio-economic rights catalogue is somewhat ‘modest’ as there are yet quite a few very crucial socio-economic rights that eluded the direct protection of its provisions. However, the limitation in the scope of Charter’s socio-economic rights has been mitigated by the broadly defined mandates of the Commission and the cross-referring provisions of the Charter. A special feature of the African Charter is the wide latitude of sources from which its monitoring and enforcement body, the African Commission, ‘shall draw inspiration’ in its promotional and protective mandates.[65] The promotional mandate of the Commission includes setting standards and formulating principles related to human and people’s rights entrusted to it under Article 45 of the Charter. Within its promotional mandate, the African Commission:
shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on Human and Peoples’ Rights, the Charter of the United Nations, the Charter of the Organisation of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of Human and Peoples’ Rights, as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the Parties to the present Charter are members.[66]
The Charter has thus provided a broad reference to sources on which the African Commission may rely in interpreting the rights guaranteed under the Charter. The use of the phrase ‘shall draw inspiration’ implies that the Commission is enjoined to have recourse to international law, principles, jurisprudence and precedents of the universal and regional human rights mechanisms.
The interpretive latitude provided by Article 60 of the Charter is of crucial relevance to the implicit socio-economic rights which are within the purview of the Charter but lack express protection. As a relatively young regional system (compared to the Inter-American and European human rights systems), the African Charter has sought to instruct its monitoring and enforcement body (the Commission) to give due consideration[67] to the wisdom, experience and emerging jurisprudence of the older regional systems and UN bodies to enrich its own promotional and protective roles. It is commented that Article 60 of the Charter bears testimony to the fact that the Charter’s provisions were inspired by universal human rights norms embedded in the UN Charter, the Universal Declaration of Human Rights, and other global human rights instruments.[68]
As a result, global and regional developments in the area of human and peoples’ rights will continue to have more role than a mere knock-on effect on the African regional human rights jurisprudence.[69] Indeed, the African Commission has used the provisions of Art 60 very liberally in order to bring the Charter in line with international practices.[70] On numerous occasions the Commission has had recourse to the practices of regional and UN organs in the determination of communications pertaining to various human and people’s rights complaints.[71] It did so in relation to the procedural rule laid down, inter alia, by Article 51(1) of the Charter,[72] and relating to the submission of information by a state party against which a communication has been lodged.[73]
The Commission also resorted to non-African practices and jurisprudence on a number of substantive issues. For instance, it referred to the General Comments of the UN Human Rights Committee (HRC) and the jurisprudence of the European Human Rights Commission as regards the right to fair trial,[74] to the decisions of the Inter-American Human Rights Commission in relation to precedence of international law over municipal law,[75] and to decisions of the European Court and Commission of Human Rights in order to define the content of the prohibition of cruel, inhuman or degrading treatment envisaged by Article 5 of the African Charter.[76] In its landmark decision of the SERAC case,[77] the Commission similarly relied on the jurisprudence established by the Inter-American and European Courts of Human Rights in the analysis of states’ obligations in implementing socio-economic rights domestically.
More specifically, the Commission repeatedly adopted the General Comments of the CESCR in the interpretation of some of the most controversial provisions of the African Charter. In the SERAC case, the Commission clearly stated that it sought to draw inspiration form General Comment 7 of the CESCR on the definition of forced evictions, the meaning of which was lacking under the African Charter.[78] Likewise, the Commission relied on General Comment 4 of the CESCR for the analysis of the right to adequate housing.[79]
In addition to the jurisprudence and practices of the global and regional human rights bodies and instruments, the African Commission has also been mandated by the Charter to refer to international customary law, general principles of law and other legal doctrines. Under Article 61 of the Charter:
The Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognised by Member States of the Organisation of African Unity, African practices consistent with international norms on Human and Peoples’ Rights, customs generally accepted as law, general principles of law recognised by African States as well as legal precedents and doctrine.
In one of its recent decisions the Commission stated its compliance with this provision: ‘[i]n interpreting the African Charter, the African Commission relies … as provided by Articles 60 and 61 of the African Charter, on appropriate and relevant international and regional human rights instruments, principles and standards.’[80] Developments in the area of human and peoples’ rights in the other regional human rights systems as well as within the UN system of human rights have thus influenced the interpretation and application of the regional Charter.
The notion of indivisibility, interdependence and interrelatedness of human rights has come to be a daily parlance for activists, litigants and academics alike since the Vienna Conference of 1993.[81] In the same vein, the socio-economic provisions of the African Charter have from the very inception been designed to be inextricably linked to the realisation of the traditional civil and political rights.[82] The Charter thus stresses, in its preamble, the link between the two categories of rights in stating that ‘the satisfaction of economic [and] social …rights is a guarantee for the enjoyment of civil and political rights.’[83] Considering the emphasis laid upon socio-economic rights in the preambular paragraph, one commentator has even expressed a concern that the wording used in the Charter is capable of relegating the implementation of the civil and political rights and grants state parties great latitude, presumably to restrict or violate civil and political rights.[84]
In the African system, the realisation of socio-economic rights has thus been considered as the catalyst and precondition for the promotion and protection of the civil and political rights and vice versa.[85] The African Charter has been hailed for its distinctness in the incorporation, on equal footing, of the socio-economic rights and civil and political rights in a manner that emphasises the indivisibility, interdependence and interrelatedness of human and peoples’ rights.[86] The inclusion of ‘peoples’ rights’[87] in the Charter, another distinct feature of the regional instrument representing the notion of collective rights in Africa,[88] means that socio-economic rights are possessed not only by individuals but also by ‘peoples’ in their collectivity.[89]
The promises of indivisibility, interdependence and interrelatedness of human rights in the African Charter notwithstanding, and contrary to the paramountcy attached to socio-economic rights, the normative clarity, enforcement and justiciability of these rights are still in their infancy. However, not only the normative content of the socio-economic rights but their justiciability could also greatly benefit from the indivisibility, interrelatedness and interdependence of all ‘categories’ of human rights enshrined in the Charter.[90]
A creative use of the indivisibility and interdependence of human rights enhances the elaboration of the civil and political dimensions of the socio-economic rights, thereby concomitantly boosting their justiciability. Thus the approach is alternatively referred to as ‘justiciable indivisibility of human rights.’[91] Such an approach helps understand a given right in its fullest sense, as no right is entirely civil and political or economic and social. Approaching socio-economic rights from their civil and political rights dimensions will help clarify the scope of protection and clarity of the socio-economic rights in question.
Moreover, the justiciable indivisibility approach to socio-economic rights is one which is more suited for the discovery of ‘new’ implicit rights. Put otherwise, it helps read into a given treaty some embedded rights which are not expressly guaranteed in the treaty. In the SERAC case[92] for instance, the African Commission read the right to food from the right to dignity[93] and the right to shelter from provisions on right to health.[94] It has been argued that the African Commission can read the right to water (of which there is no mention under the Charter at all) into or from other rights that have been clearly provided for in the regional instruments.[95] Indeed, there have been instances where the African Commission has been presented with the opportunity to rule on disputes that have implications for the implementation of a human right to water in state parties to the African Charter. In the Free Legal Assistance Group and Others v Zaire, the Commission held that the ‘failure of the government to provide basic services such as safe drinking water and electricity and the shortage of medicine … constitutes a violation of Art 16 [right to health].’[96] This is witness to the Commission’s use of the same logic as that of the United Nations Committee on Economic, Social and Cultural Rights, which derived the human right to water from other rights through the use of indivisibility, interdependence and interrelatedness of human rights.[97]
Accordingly, ‘where content falls short of international standards, the Commission is … interpreting the provisions of the Charter in ways that generally conform to such standards.’[98] In effect, the Commission has shown the willingness to derive implicit socio-economic rights from other explicitly recognised rights. The emerging jurisprudence and approach of the African Commission has thus been described as ‘imaginative and integrative.’[99] The analysis of the limited jurisprudence of the African Commission has shown that socio-economic rights that are not explicitly recognised in the Charter could be regarded as implicitly included.[100] A complete account of socio-economic guarantees of the Charter are thus a combination of explicit norms and implicit guarantees that have yet to be explicated by the Commission within the context of progressive development of the regional human rights system.
As it can be discerned from the foregoing, the essence of the present enquiry is not to argue towards supplanting the direct justiciability of socio-economic rights with the indirect approach. The interplay of the direct and the indirect approaches to socio-economic rights justiciability is such that the former, which is the end, can be enhanced through the use of the latter as a viable instrument. However, in order to enhance the direct justiciability of the socio-economic rights and freedoms of the African Charter there is a need to establish more normative clarity about the rights guaranteed in the Charter and correlative state obligations.
Given the relatively little litigation on the categories of rights under consideration, there has been little case law which sheds light on the normative content of each of the socio-economic rights explicitly or implicitly guaranteed under the Charter. This has been widely acknowledged by the Commission, states and non-state actors alike. An excellent example of this is the ‘Pretoria Statement’, a consensus document that was adopted in Pretoria, South Africa, in September 2004 at a joint meeting of the African Commission Commissioners, representatives of State parties and of national human rights institutions as well as representatives of UN bodies. The meeting was convened in response to the need that was felt to give more attention to the marginalised state of socio-economic rights enforcement.[101] One of the outcomes of the seminar was the elaboration, in the ‘Pretoria Statement’, of each of the Charter’s socio-economic rights. Cognisant of the dire need of normative clarity of the rights, the participants adopted an indicative list of the essential meanings intended by the socio-economic rights of the charter.[102] The elaboration was intended to explicate the ‘core contents’[103] of each of the Charter’s socio-economic rights, upon which the wider implications of each right would be expanded over time.
The problem surrounding the justiciability of the Charter’s socio-economic rights owes its causes to the reticence, reluctance or inaction of the numerous actors. For its part, the African Commission has been criticised for its ineptness — perceived or real — in the area of socio-economic rights. Khoza argues that ‘the Commission’s promotional activities have paid lip service to economic, social and cultural rights by being predominantly focused on civil and political rights.’[104] Similar concerns have indeed been raised by civil society organisations at the African Commission sessions and have been conceded by the Commission itself.[105] However, it is not possible or reasonable to shift the whole blame on to the Commission for the relative lack of justiciability of socio-economic rights. The Commission is a tribunal who decides only when there is a case before it to start with. Only if complaints are lodged can the Commission decide. Non-state actors who have been the driving force of the complaints procedures of the Commission have equally been unable or reluctant to litigate in the area of socio-economic rights violations.
Thus the concerns and criticisms about the Commission’s failures are warranted mainly in relation to its promotional mandate (which is beyond the scope of the present work). In discharging its protective mandate, however, as shown above, the Commission has been very open to new and proactive approaches to the interpretation of the social-economic rights and freedoms enshrined in the Charter, not least in the area of socio-economic rights.[106] In cases where socio-economic rights violations have been shown by the parties to the litigation, the Commission has found the relevant state in violation of the right in question. There have been quite a few such instances. The commission has rendered decisions and ordered some appropriate remedies, inter alia, in cases involving violations of the rights to property (Article 14),[107] health (Article 16),[108] work (Article 15)[109] and education (Article 17),[110] and the more implicit rights to food and shelter.[111]
However, apart from the Purhoit and SERAC cases, complaints about violations of socio-economic rights that have reached the Commission have come intermingled with and in the context of violations of the civil and political rights which lie at the background. Given the rampancy of the violations across the continent,[112] one could have expected that many more cases of socio-economic rights were to flow to the Commission than has been the case.
Consequently, despite the direct justiciability of socio-economic rights that has been made normatively possible under the African Charter, the communications procedure of the Charter has relatively rarely been put to use in relation to the socio-economic rights by ‘consumers’ of the regional human right system in their caseworks before the Commission. Many reasons can be surmised but certainly one of those is the lack of case law and slow development of socio-economic rights standards. The size of case law on socio-economic rights and their justiciability are directly related: the more case law there is to rely on, there would be more litigation involving the rights. The relative lack of case law involving these rights means, therefore, that there must be innovative ways of enhancing justiciability in order to establish the much needed jurisprudence regarding the rights. The indirect approach has proven to be capable of playing this role, while, at the same time contributing towards norm clarification, thereby paving the way for the gradual emergence of a nuanced jurisprudence for the complainants to rely on in order to establish specific socio-economic rights violations before the Commission.
The indirect approach, which is based upon the expansive interpretation of the more established and explicitly protected (often civil and political or cross-cutting) rights, is ‘the most promising in terms of achieving real-world results.’[113] It has been successfully put to good use for enhancing justiciability of socio-economic rights in the Inter-American and European human rights systems (from which the African commission is enjoined to draw inspiration) and even in national jurisdictions as a means to litigate and establish socio-economic rights violations. The state’s failure to respect, protect, promote and/or fulfil these rights may result in violations of one or more socio-economic rights or vice versa, and remedies to violations of one group of rights may prove effective and adequate to redress violations of the other group. Litigants in the other regional systems and domestic jurisdictions have resorted to the use mainly of the right to equality (or the protection against discrimination), the right to judicial protection and remedy and the right to due process. The next section grapples with these issues in that particular order.
Domestic and international legislative and judicial (or quasi-judicial) bodies have long been engaged in the formulation and elaboration of the right to equality and its flip side (non-discrimination) and principles and fundamental values that inform and/or underlie the protection of the right to equality. This is a result of the recognition that the protection of the fundamental right to equality is a guarantee for the enforcement of the underlying human rights guarantees, including the protection and promotion of socio-economic rights in equal and equitable manner. The equality guarantee is therefore a thread that draws together all categories of human rights.[114] The notion of equality dictates the distribution of public resources for the protection and promotion of, for instance, the right to health, labour rights, the right to education and other prized social goods and services to everyone at equal measure.[115] The equality guarantee is thus not only a fundamental right in its own right, but it is also a value that underlies the remainder of human rights corpus. It has been observed:
[t]he distinction between the two [right and value] is worth noting. As a value, equality gives substance to the vision of the … [right]. As a right, it provides the mechanism for achieving substantive equality, legally entitling groups and persons to claim the promise of the fundamental value and providing the means to achieve this. The fact that there is a relationship between value and right-the value is used to interpret and apply the right-means that the right is infused with the substantive content of the value.[116]
Thus, the violation of the right to equality disturbs all the values that inform its content as well as the rights guaranteed through its enforcement. As the African Commission stressed, ‘[t]he right to equality is all the more important since it determines the possibility for the individual to enjoy many other rights.’[117] In an international instrument such as the Charter that seeks to guarantee the equal protection and benefit of the law, equality has a central role both as the underlying value and as a concrete right. Under Article 3 of the Charter, ‘[e]very individual shall be equal before the law’ and ‘shall be entitled to equal protection of the law.’ The crucial importance attached to the equality guarantee of the Charter can be discerned from the ordering and pattern of its provisions as the prohibition on discrimination (Article 2) and equality in and before the law (Article 3) come even before the right to life (Article 4). The Charter’s provisions on the right to equality have been elaborated by the African Commission:
Article 3 of the African Charter has two arms, one dealing with equality before the law, that is, Article 3(1), and the other, that is, Article 3(2). The most fundamental meaning of equality before the law or equality under the law is a principle under which each individual is subject to the same laws, with no individual or groups having special legal privileges. On the other hand, equal protection of the law under Article 3(2) relates to the right of all persons to have the same access to the law and courts and to be treated equally by the law and courts both in procedures and in the substance of the law.[118]
The right to equality under the Charter applies to all the rights and freedoms guaranteed in the regional instrument and cuts across the traditional civil and political, economic, social and cultural, and group (solidarity) rights that should be enjoyed by every individual and group without discrimination.[119] Article 2 of the Charter explicated that everyone is ‘entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind.’ As the Commission observed, ‘[e]quality or lack of it affects the capacity of one to enjoy many other rights.’[120] Access to the enjoyment of the Charter’s rights and freedoms must be available to everyone at equal measure.
Thus the violation of a given socio-economic right may trample not just the specific socio-economic right in question but also the equality clause of the Charter. In such instances, the use of the right to equality, or, alternatively, proving discrimination has been shown to be a valuable instrument as a means of demonstrating the violations of socio-economic rights. Numerous cases have successfully challenged and brought about redress for the violations of socio-economic rights in the European and Inter-American systems of human rights through the use of equality guarantee (and the protection against discrimination) as a means of establishing the violations in issue.
In the case of Autism-Europe v France,[121] at issue was whether France provided insufficiently for the education of children and adults with autism (right to education). After adjudging France’s budgetary allocations for autistic children discriminatory, the European Social Committee found that France had violated the right to education of such children. It ruled, ‘the proportion of children with autism being educated in either general or specialist schools is much lower than in the case of other children.’[122] The Committee thus concluded that the situation constitutes a violation of the non-discrimination guarantee in the Revised European Social Charter.[123] In Gaygusuz v Austria,[124] the European Court of Human Rights (ECHR) applied the prohibition of discrimination under Article 14 of the European Convention on Human Rights and Article 1 of Protocol No 1 to enforce the right to property and emergency (social) assistance. Mr Gaygususz was born in Turkey but lived and worked in Austria for eleven years, during which time he made all the necessary contributions to the unemployment insurance fund. Upon falling ill, he applied for government emergency advance on his pension, a request which the government rejected because of his nationality. The ECHR adjudged this rejection as discrimination based on the ground of nationality, and found Austria to have violated Mr Gaygusuz’s pension and property rights. In Abdulaziz, Cabales, and Balkandali v the United Kingdom, the ECHR explicitly held that economic rights that would not otherwise be protected by the European Convention would still be guaranteed against discriminatory application in terms of Article 14 of the Convention.[125] In Schuler-Zgraggen v Switzerland, the ECHR unequivocally stated that the principle of non-discrimination applies to socio-economic rights.[126] The case concerned the denial by the Swiss court of unemployment benefits to a married woman with a two-year old child on the theory that she was unlikely to find a job outside her home. The benefits would have accrued to a childless woman.
Similarly, the indirect protection of socio-economic rights has been employed in the Inter-American system. In the case of Maria Eugenia Morales de Sierra v Guatemala, the Inter-America Commission found that the Guatemalan Civil Code that allowed husbands to determine whether married women can work was discriminatory and violated the right to equality in relation to women’s right to work.[127] Similarly, the Inter-American Court on Human Rights held that the migratory status of a person cannot constitute a justification to deprive him of the enjoyment and exercise of human rights, including those of a labour-related nature (right to work).[128]
For its part, the Human Rights Committee (HRC) applied the right to equality and the prohibition against discrimination not only in the area of civil and political rights but also in relation to socio-economic rights. In Zwaan de Vries v The Netherlands,[129] the HRC, going beyond its normal mandate of protecting and promoting civil and political rights, applied the equality guarantee towards the protection of social security. It noted, ‘the principle of equal protection of the law without discrimination, as contained in article 7 of the Universal Declaration of Human Rights, …prohibits discrimination in law or in practice in any field regulated and protected by public authorities.’[130] In this case, Dutch legislation which granted unemployment benefits to unmarried women and all (married or unmarried) men denied the same benefits to married women on the theory that, given their marital responsibilities, unmarried women cannot be ‘breadwinners’ for a family. The HRC found the Netherlands in violation of the right to equality in denying the unemployment benefits to unmarried women.
The protection and justiciability of socio-economic rights have similarly been boosted in numerous national jurisdictions through the use of the protection against non-discrimination. The Canadian Supreme Court extended the protection of the equality provision (s 15) of the Canadian Charter of Rights and Freedoms to socio-economic rights. In Eldridge v British Columbia (Attorney General), it held that ‘discrimination can accrue from a failure to take positive measures to ensure that disadvantaged groups benefit equally from services offered to the general public.’[131] The failure on the part of the Medical Services Commission and hospitals of British Columbia to provide sign language interpretation for the deaf as part of publicly funded scheme for the provision of medical care was found to be in violation of the equality clause (s 15(1)) of the Canadian Charter. In the Plyler v Doe case,[132] the United States Supreme Court used the equality guarantee to strike down the Texas statute that negatively impacted upon the rights to education of illegal aliens. The statute had authorised district authorities to deny enrolment to such children. The Supreme Court held that such a law is discriminatory, and that it would not only create a ‘sub-class of illiterates’ but also lacked rationality and legitimate state objective.[133] Petitioners of socio-economic rights may thus achieve significant results by resorting to the use of the right to equality and protection against discrimination as a means of accessing judicial forums.[134]
Underlying the requirement of internalising the substantive corpus of international human rights law is the aspiration that individuals and groups who are victims of violations of (treaty-based) human rights avail themselves of local remedies before local tribunals through local procedures just in the same manner that they enforce the rights guaranteed under domestic laws. There is a structural dependence of international human rights law on domestic law. The incorporation of international human rights guarantees into domestic legal systems thus links the violations of such standards and the award of national and international remedies as administered by local judicial or quasi-judicial institutions. The types and content of local remedies may vary from jurisdiction to jurisdiction but they must be available, adequate and effective. According to the African Commission:
[t]hree major criteria could be deduced from the practice of the [African] Commission in determining this rule, namely: the remedy must be available, effective and sufficient … A remedy is considered available if the petitioner can pursue it without impediment; it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint.[135]
The requirement of exhaustion of local remedies assumes the availability, adequacy, and effectiveness of local remedies, in the absence of which complainants of (treaty-based) human rights violations will be allowed to lay their cases directly before international human rights bodies. The use of remedies in this context refers to judicial and non-discretionary remedies as opposed to discretionary remedies such as presidential amnesty in cases of death penalty.[136] The degree of judicial protection (or lack thereof) is contingent, inter alia, on the normative nature of the claim, the jurisdiction of the court, the degree of investigation and types of remedies that can be reasonably expected from the litigation before the relevant body or court and the enforcement of the remedy if and when granted. Each of these elements is briefly examined below.
One of the overarching duties undertaken by the states parties to the African Charter is the obligation ‘to adopt legislative or other measures to give effect to them.’[137] This entails both negative and positive state obligations. A duty to respect human rights is a negative obligation that requires the state to refrain from the violation of the existing enjoyment of Charter rights, not least socio-economic guarantees.[138] Positively, the duty to give domestic effect to the Charter requires the state to protect individuals and groups against rights infringements through the omissions or commissions of non-state actors.[139] The duty to promote involves the facilitation of the enjoyment of charter-based guarantees especially through awareness raising, provisions of legal protections and procedures that pave the way for the enforcement of the rights and through the removal of domestic obstacles.[140] The state’s duty to fulfil entails a ‘direct provision of basic needs such as food or resources’ in the event that the individuals and groups lack the requisite material means to lead a life of dignity.[141] The cumulative effect of the quartet layers of states’ human rights obligations entails the duty to provide preventive and remedial legal and institutional procedures in the event of possible violations. In other words, there must be local legislative and institutional leeways that should lead to the award of prompt, adequate and effective redress.
One of the most fundamental problems that stands on the path of socio-economic rights justiciability on the African continent is the fact that, in many of the national jurisdictions, socio-economic rights are part of Directive Principles of State Policy (DPSP).[142] In those countries where they are assigned the status of DPSP, socio-economic rights are excluded from the ambit of judicial jurisdictions. Complaints about the violations and/or enforcement of socio-economic rights are beyond the reach of judicial scrutiny and supervision. In Namibia, for instance, the Supreme Court decided that the DPSP ‘are not enforceable in any court of law, and, therefore, should they be ignored or infringed the aggrieved have no legal remedy to compel positive action.’[143] A similar situation in Nigeria led to the admissibility of the SERAC case by the African Commission. In the SERAC case, the Commission commented that one of the underlying justifications behind the admissibility requirement of exhaustion of domestic remedies is the need to avoid the rendition of contradictory judgements from international and national forums.[144] Accordingly, ‘[w]here a right is not well provided for in domestic law such that no case is likely to be heard, potential conflict does not arise. Similarly, if the right is not well provided for, there cannot be effective remedies, or any remedies at all.’[145]
The enforcement of the right to ‘the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter’[146] is incomplete unless states provide for avenues of complaint in the event that these rights are violated by state and/or non-state actors. The lack of such process-guarantees would lead to the unwelcome effect of the Commission becoming the forum of first instance for hearing violations of the rights in question.[147]
The right to have one’s case heard, or the right to access a court of appropriate jurisdiction is a ‘central aspiration of all human rights instruments and is central to the rule of law.’[148] Article 7 of the Charter provides for the right to have one’s case heard. The hearing in question applies invariably to complaints about all Charter-based rights, including socio-economic rights. If the claim falls within non-justiciable provisions under the domestic law, either forming part of DPSP or otherwise, the access to domestic judicial, administrative or quasi-judicial tribunals is curtailed. Even where the claim is justiciable, accessing the concerned bodies could still be curtailed through jurisdictional ousters of the setting or due to cost implications of the judicial process which makes judicial procedure beyond the reach of the poor and the marginalised.
In a case against Nigeria,[149] the African Commission declared that, in the face of the Decrees that ousted the jurisdiction of Nigerian regular courts in matters covered under the SERAC case, it was willing to be a jurisdiction of first instance. It commented, ‘it is reasonable to presume that domestic remedies will not only be prolonged but are certain to yield no results.’[150] In disputes involving the right to work (labour rights), a strong protection is provided through restrictions on the employer’s discretion to dismiss employees. But such protections lose their legal bite if specific cases of dismissal cannot be challenged before the domestic tribunals. In the Koskinas v Greece,[151] a Greek court of appeal ruled that civil courts lack the competence to examine the merits of employer’s dismissal decisions, leaving employee’s job security at the complete mercy of employers. The ECHR found Greece in violation of Article 5(1) of the European Convention on Human Rights for denying the applicant of access to court in order to challenge the legality of his dismissal. As the HRC observed,
[T]he notion of equality before the courts and tribunals encompasses the very access to the courts, and that a situation in which an individual’s attempts to seize the competent jurisdictions of his or her grievances are systematically frustrated runs counter to the guarantees of Article 14(1).[152]
In the same vein, the African Commission ruled:
[E]qual protection of the law under Article 3 (2) [of the Charter] relates to the right of all persons to have the same access to the law and courts and to be treated equally by the law and courts both in procedures and in the substance of the law. It is akin to the right to due process of the law, but in particular, applies to equal treatment as an element of fundamental fairness.[153]
The crucial importance of the right to access a tribunal with a power to investigate into and judicially appraise arbitrary violations of socio-economic rights lies in the fact that it leads to the award of an adequate and effective remedy. The remedy could take the form of injunctions, compensation, restoration of confiscated property, reinstatement in a job or a combination of these or other types of relief.[154] The lack of a remedy or its ineffectiveness and/or inadequacy is equally a violation of fundamental rights, including socio-economic rights. In such instances, the regional bodies would be the principal and primary port of call for holding the state accountable for such violations.
Judicial scrutiny and consequent award of remedies for violations of Charter-based guarantees would add up to little use unless the remedies are enforced by the relevant national organs. The enforcement of domestic remedies is the main peg upon which any semblance of domestic socio-economic implementation is hung. Even when the legal procedures allow domestic institutions to investigate, hear and render decisions on alleged violations of charter-based guarantees, a state’s failure or refusal to enforce the remedies ordered in such decisions would violate the substantive rights. It would turn out that the available remedies are rendered ineffective for the purpose of the complainant.
In a case involving the Democratic Republic of Congo, the HRC, normally responsible for monitoring and enforcement of civil and political rights, enforced labour rights through the use of lack of enforcement of remedies that were granted. The HRC found that the defendant state’s failure to execute the decision by the Ministry of Primary and Secondary Education to reinstate the complainant meant that the domestic remedy was not effective, and declared the case admissible.[155] Similarly, the African Commission found Cameroon to have violated Article 15 (the right to work) of the complainant where it failed to reinstate a magistrate who, having been dismissed, was entitled to reinstatement in his position under subsequent amnesty law.[156] Similarly, the Commission emphasised that it is ‘of the view that the right to be heard guaranteed by Article 7 of the African Charter includes the right to the execution of a judgment.’[157] The African Commission thus held Republic of Congo responsible for violating the African Charter through refusal to execute an order of a domestic body for the compensation of the complainant in order to redress the destruction caused to his personal property and real estate (right to property) by government soldiers.[158]
However, the African Commission has elaborated the meaning of state’s failure to enforce remedies when given. Firstly, the issue of failure of enforcing remedies is gauged from subjective standpoint, and state’s failure to enforce a remedy in one case does not necessarily give rise to a presumption that the state would not enforce remedies in other cases. Each case turns upon its specific facts. Accordingly, ‘[i]t is not enough for a complainant to simply conclude that because the state failed to comply with a court decision in one instance, it will do the same in their own case. Each case must be treated on its own merits.’[159]
The right to judicial protection of human rights is incomplete unless the right to due process is concomitantly ensured. Normally considered as a progeny of the civil and political rights frameworks, the right to due process is equally applicable to the socio-economic rights. A starting point for any justiciable right is the right of the victims or those acting on their behest to be heard before a tribunal of appropriate jurisdiction.
Under Article 7 (1) of the Charter, ‘[e]veryone has the right to have his cause heard.’ The right to a hearing applies across the board to civil and political as well as socio-economic rights, and group rights. Its core merit lies in the fact that it guarantees to any person the right to challenge the actions, decisions or policies affecting his or her rights before a neutral tribunal. When substantive rights are in jeopardy, complainants can resort to the ‘due process guarantees’, demanding that a hearing be provided prior to any deprivation of a right. As the African Commission ruled, ‘where the right to be heard is infringed, other violation may occur.’[160] The right to be heard can be violated not only through denial or restriction of the right by a law or a tribunal, but it can also be eroded obliquely through executive or parliamentary interferences. Thus dismissal of judges or deprivation of the courts of the personnel necessary for carrying out its judicial duties impartially infringes the right to be heard.[161]
The UN Committee on Economic, Social and Cultural Rights affirmed that forced evictions should not be undertaken without judicial orders, and without procedural guarantees allowing the evictees the opportunity to be heard.[162] Likewise, the US Supreme Court in its Goldberg v Kelly decision, affirmed that statutory entitlements that constitute ‘the very means by which to live’ such as social security require pre-deprivation hearing.[163] Justice William Brennan wrote, ‘the crucial factor in this context … is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.’[164] The Court held that the Fourteenth Amendment right to due process of law required that welfare recipients be afforded an evidentiary hearing to determine their eligibility before their rights were terminated by welfare authorities.[165] In a case involving Angola, the African Commission found the defendant state to be in violation of the right to property and the right to work for forcedly expelling foreigners who had been living and working in the country in compliance with domestic laws of the state. It ruled that:
[T]he abrupt expulsion without any possibility of due process or recourse to national courts to challenge the Respondent State’s actions severely compromised the victims’ right to continue working in Angola under equitable and satisfactory conditions.[166]
A meaningful hearing of human rights compliant by a tribunal must ensure the due process guarantees. Although the due process guarantees are often associated with criminal proceedings, there is no reason why the same procedural guarantees cannot be applied to hearings partly, predominantly or even solely involving socio-economic rights. Under Article 7(1)(a) of the Charter, everyone has the ‘right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force.’ The right is related to violations of all fundamental rights and freedoms recognised in the Charter and this applies to socio-economic provision of the regional instrument. As the Inter-American Court ruled, the minimum guarantees in the determination of disputes about violations of human rights equally apply to cases that are of ‘civil, labour, fiscal, or any other nature.’[167]
An important aspect of the right to due process is the equality of arms between the complainant and the alleged violator.[168] This can be guaranteed, inter alia, through the enforcement of the right to be defended by the counsel of one’s choice,[169] availability of translator free of charge,[170] the right to be given necessary notice to ensure that a party has adequate time and means to prepare his/her case.[171] As the African Commission emphasised:
[t]he Commission recalls that the right to fair trial involves fulfilment of certain objective criteria, including the right to equal treatment, the right to defence by a lawyer, especially where this is called for by the interests of justice, as well as the obligation on the part of courts and tribunals to conform to international standards in order to guarantee fair trial to all.[172]
In the area of socio-economic rights, the violation of due process guarantees could bring about violations such as the arbitrary termination of welfare benefits (right to social security) or of employment (the right to work), illegally forced evictions (right to housing), or confiscation (right to property). Accordingly, the right to due process ‘protects people against unreasonable or procedurally unfair administrative action in the sphere of social services such as social security, health care, housing, and education.’[173] Denial of due process guarantees at the domestic level would thus absolve the complainants or those acting on their behalf from the burden of exhausting local remedies in order to submit their cases to the African Commission. In Article 19 v Eritrea,[174] the African Commission ruled that the ‘exception to the rule on the exhaustion of domestic remedies would therefore apply where the domestic situation of the state does not afford due process of law for the protection of the right or rights that have allegedly been violated.’
The right to have one’s case heard (under Article 7(1)(d)) includes the right to be heard in a reasonably expedient manner.[175] As the African Commission ruled, the denial of the right to a fair trial, including failure to render decisions in a reasonable time ‘constitutes a denial of justice and the violation of the equality of all citizens before the law.’[176] Besides, the right to a hearing and to a decision within a reasonable period is an instrument of the right to an effective remedy that also impinges upon its adequacy. In a case involving Cameroon, the HRC decided that the protracted judicial procedures in which the complainant was seeking reinstatement into his job (the right to work) that took over 10 years before a decision was rendered ‘cannot, therefore, be considered to be satisfactory remedy.’[177] In Communication 39/90, the African Commission held that the failure on the part of Cameroon’s Supreme Court to hand down a judgement within two years from the commencement of the proceedings violated the right to a fair trial under Article 7(1)(d) of the Charter.[178]
If the domestic proceedings are protracted — or in the language of the Charter, ‘unduly prolonged’ — a litigant is exempt from exhausting local remedies and can abandon local proceedings and submit his/her complaints to the African Commission instead.[179] This invariably applies to socio-economic rights violations.
The right to a hearing is not sufficient on its own to ensure the due process guarantees. Another most crucial aspect is the impartiality, independence and competence of the judicial or quasi-judicial body before which the hearing takes place. Article 7(1) of the Charter guarantees the right to a hearing before a competent and an impartial tribunal. Under Article 26, the Charter provides that such tribunals must also be independent. Ouster of judicial jurisdiction,[180] executive control of the judiciary,[181] and establishment of military courts or otherwise special tribunals or a bench composed of a mix of military and civilian judges[182] constitute a violation of the duty of ensuring independence and impartiality of the judiciary. As regards impartiality, not only the individual character of the judges involved but the overall appearance of the composition of the tribunal is also an important consideration. Thus, regardless of the character of the individual members of the tribunal, ‘[t]he composition [of the tribunal] alone creates the impression, if not the reality, of lack of impartiality and as a consequence, violates Article 7.1(d).’[183] The Commission also stressed the importance of competence of a given tribunal: ‘[e]specially sensitive is the definition of “competent,” which encompasses facets such as the expertise of the judges and the inherent justice of the laws under which they operate.’[184]
Notwithstanding the indivisibility, interdependence and interrelatedness of human rights that have been embraced by the African Charter from its inception, the justiciability and normative clarity of its socio-economic guarantees show a sharp contrast to their traditional civil and political counterparts. To date, very few cases of socio-economic rights violations have reached the African Commission despite the rampant violations of the rights in question across the continent. Granted that all human and peoples’ rights have shared parity of status in the Charter, the underutilisation of the regional mechanism for socio-economic rights litigation and enforcement cannot be primarily attributed to the nature of the rights or the ideological divide of past decades. It appears that the establishment of their violations tended to pose especially complex problems. There is a need for innovative approaches to boost the justiciability of the Charter’s socio-economic rights. While the option of direct justiciability of socio-economic rights of the Charter has always been available, the indirect approach offers an added advantage of showing the violations of socio-economic rights through the expanded use of the more elaborated and cross-cutting rights. Experience has shown that the justiciability of socio-economic rights can greatly benefit from the use of violations of the right to equality, the right to judicial protection and the right to due process as a means of establishing infringements of socio-economic rights. Thus the indirect approach facilitates socio-economic litigation, paves the way for direct justiciability and, through boosting the emergence of a nuanced jurisprudence, enhances normative clarity for future complaints relating to socio-economic rights. While it does not purport to supplant direct justiciability, it is a means to that end. Through time, socio-economic rights would eventually come to have sufficient case law of their own for complainants to rely on.
[∗] LLB (Addis Ababa University), LLM (University of Pretoria), MA (Addis Ababa University), PhD Candidate and Teaching Fellow, Melbourne Law School, The University of Melbourne. I am grateful to the anonymous referees for their very helpful comments and suggestions on the earlier draft of this work.
[1] In reference to the term ‘socio-economic rights’, we adopt the definition put forward by Viljoen, who defined them as entitlements that ‘give rise to the shared concern of ensuring societies where everyone has a minimum decent standard of living consistent with human dignity (the “bare necessities of life”).’ Frans Viljoen, ‘The Justiciability of Socio-Economic and Cultural Rights: Experiences and Problems’ (2006) 1 (unpublished, on file with the author. See also, ‘Statement from Seminar on Social, Economic and Cultural Rights in the African Charter (Adopted in Pretoria, 13-17 September 2004’ (2005) 5 African Human Rights Law Journal 182, (‘Pretoria Statement’).
[2] In both the European and Inter-American regional human rights systems, the justiciability of socio-economic rights has emerged much later than their civil and political counterparts. Even so, even today, only a few rights can be made justiciable in the Inter-American system, and, only the collective complaints (as opposed to individual complaints) system is available in the European system. See generally, Robin R Chrchill and Urfan Khaliq, ‘The Collective Complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?’ (2004) 15(3) European Journal of International Law 417; Hugo Caminos, ‘The Inter-American System for the Protection of Human Rights’ in Janusz Symonides (ed), Human Rights: International Protection, Monitoring, and Enforcement (2003) 165; Philip Alston, ‘Assessing the Strengths and Weaknesses of the European Social Charter’s Supervisory System’ in Grainne de Burca and Bruno de Witte (eds), Social Rights in Europe (Oxford University Press 2005) 45; Robin R Churchill and Urfan Khaliq, ‘Violations of Economic, Social, and Cultural rights: The Current use and Future Potential of the Collective Complaints Mechanism of the European Social Charter’ in Mashood A Baderin and Robert McCorquodale (eds), Economic, Social and Cultural Rights in Action (Oxford University Press, 2007); Matthew Craven, ‘The Protection of Economic, Social and Cultural Rights under the Inter-American System’ in David J Harris and Stephen Livingstone (eds), The Inter-American System of Human Rights (Oxford University Press, 1998) 289.
[3] Michael K Addo, ‘Justiciability Re-Examined’ in Beddard Ralph and Dilys M Hill (eds), Economic, Social and Cultural Rights: Progress and Achievement (Macmillan,1992) 93, 94-96; Monica Feria Tinta, ‘Justicability of Economic, Social, and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms’ (2007) 29 Human Rights Quarterly 431, 433; Kitty Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects (Intersentia, 1999) 55.
[4] Frans Viljoen, ‘National Legislation as a Source of Justiciable Socio-Economic Rights’ (2006) 6(3) WSR Review 6, 6.
[5] African [Banjul] Charter on Human and Peoples’ Rights, Adopted June 27, 1981, OAU Doc CAB/LEG/67/3 Rev 5, 21 ILM 58 (1982); entered into force 21 October 1986.
[6] See, for instance, ‘the right to work under equitable and satisfactory conditions’ (Article 15), ‘the right to enjoy the best attainable state of physical and mental health’ (Article 16), and ‘the right to education’ (Article 17).
[7] Some of the socio-economic rights that are conspicuously absent from the explicit guarantees of the Charter include the right to water, food, housing and the right to social security. The absence of an explicit provision relating to these rights does not imply that they are beyond the Charter’s ambit of protection however as they are indirectly included. See Section III, The Socio-Economic Norms of the African Charter.
[8] Christoff Heyns, ‘The African Regional Human Rights System: The African Charter’ (2004) 108 Penn State Law Review 679, 690.
[9] The African Commission ruled that a complainant ‘do not necessarily have to be the victim of such violations or members of their families. This characteristic of the African Charter reflects sensitivity to the practical difficulties that individuals can face in countries where human rights are violated. The national or international channels of remedy may not be accessible to the victims themselves or may be dangerous to pursue.’ See Communication 54/91, 61/91, 98/93. 164-196/97 and 210/98, Malawi African Association and Others v Mauritania, 13th Annual Activity Report, [78] (hereinafter ‘Mauritania case’). See also Morten Peschardt Pedersen, ‘Standing and the African Commission on Human and Peoples’ rights’ (2006) 6 African Human Rights Law Journal 407, 411; George William Mugwanya, ‘Realising Universal Human Rights Norms through Regional Human Rights Mechanisms: Reinvigorating the African System’ (1999) 10 Indiana International and Comparative Law Review 35, 46.
[10] Despite the lack of an explicit legal basis in the Charter for the provision of legal remedies, the Commission has developed a practice of ordering appropriate remedies for violations of Charter-based rights and freedoms. See Frans Viljoen, ‘A Human Rights Court for Africa, and Africans’ (2004) 30 Brooklyn Journal of International Law 1, 14-15; Godfrey M Musila, ‘The Right to an Effective Remedy Under the African Charter on Human and Peoples’ Rights’ (2006) 6 African Human Rights Law Journal 442, 447-458. See also, generally, Gino J Naldi, ‘Reparation in the Practice of the African Commission on Human and People’s Rights’ (2001) 14 Leiden Journal of International Law 681.
[11] Communication 155/96, The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria, 15th Annual Activity Report, [68] (hereinafter ‘the SERAC’ case).
[12] See generally Pretoria Statement, above n 1; Justice N Nwobike, ‘The African Commission on Human and Peoples’ Rights and the Demystification of Second and Third Generation Rights under the African Charter: Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESCR) v Nigeria’ (2005) 1 African Journal of Legal Studies 129; Sibonile Khoza, ‘Promoting Economic, Social and Cultural Rights in Africa: The African Commission Holds a Seminar in Pretoria’ (2004) 4 African Human Rights Law Journal 334, 130.
[13] 155/96, The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria, 15th Annual Activity Report, [49], [57], [66] (‘the SERAC’ case).
[14] Communication 241/2001, Purohit and Moore v The Gambia, 16th Annual Activity Report (2002-2203).
[15] Heyns noted that ‘[t]he socio-economic rights in the Charter received scant attention from the Commission.’ See Heyns above n 8, 691.
[16] Christof Heyns, ‘Civil and Political Rights in the African Charter’ in Malcolm Evans and Rachel Murray (eds), The African Charter on Human and Peoples’ Rights: The System in Practice, 1986-2000 (2002) 137, 137.
[17] See generally, J Oloka-Onyango, ‘Reinforcing Marginalised Rights in an Age of Globalization: International Mechanisms, Non-State Actors, and the Struggle for Peoples’ Rights in Africa’ (2003) 18 American University International Law Review 851.
[18] Chidi Anselm Odinkalu, ‘Analysis of Paralysis or Paralysis by Analysis? Implementing Economic, Social, and Cultural Rights under the African Charter on Human and Peoples’ Rights’ (2001) 23 Human Rights Quarterly 327, 330.
[19] Problems relating to normative clarity of socio-economic rights of the Charter have been emphasised in the Pretoria Statement, where Commissioners of the African Commission, state parties to the Charter as well as civil society and UN representatives agreed to define the core content of some of the Charter’s socio-economic rights. See Pretoria Statement, above n 1, [5]-[11].
[20] Academics have long pointed to the utility of this approach. Scott, for instance, refers to this approach as a seemingly ‘odd’ one that seeks to ‘take the category of economic, social, and cultural rights most seriously by not taking it too seriously.’ See Craig Scott, ‘Reaching Beyond (Without Abandoning) the Category of “Economic, Social and Cultural Rights”’ (1999) 21 Human Rights Quarterly 633, 634.
[21] Sandra Liebenberg, ‘The Protection of Economic, Social and Cultural Rights in Domestic Legal Systems’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights: A Text Book (Kluwer Law International, 2001) 55, 71.
[22] See Tara Melish, Protecting Economic, Social and Cultural Rights in the Inter-American Human Rights System: A Manual on Presenting Claims (Orville H Schell Jr Centre for International Human Rights, Yale Law School and Centro de Derechoes Economicos y Sociales, Ecuador, 2002) 193-230.
[23] See, generally, Eva Brems, ‘Indirect Protection of Social Rights by the European Court of Human Rights’ in Daphne Barak-Erez and Aeyal M Gross (eds), Exploring Social Rights: Between Theory and Practice (Hart Publishing, 2007) 135.
[24] See Part III(B) 3.2, below. See also Mugwanya above n 9, 46.
[25] See Pretoria Statement above n 1, attempting to explain the normative content of the Charter’s socio-economic rights.
[26] Martin Scheinin, ‘Economic, Social and Cultural Rights’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights: A Textbook (Kluwer Law International, 2nd ed, 2001) 29, 42.
[27] Ibid; Robert E Robertson, ‘Measuring State Compliance with the Obligations to Devote the “Maximum Available Resources” to Realizing Economic, Social, and Cultural Rights’ (1994) 16 Human Rights Quarterly 693.
[28] Robertson above n 27, 693-694; Philip Alston, ‘Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 332, 351-353.
[29] See, generally, John Cantius Mubangizi, ‘The Constitutional Protection of Socio-economic Rights in Selected African Countries: A Comparative Evaluation’ (2006) 2 African Journal of Legal Studies 1; Nwobike, above n 12, 140-141.
[30] Michael Kirby, ‘The Growing Rapproachement between International Law and National Law’ in Antony Anghie and Garry Sturgess (eds), The Third World and International Order: Law, Politics, and Globalization (Martinus Nijhoff, 998) 333, 354.
[31] Article 45 (1) (b), African Charter.
[32] See generally Frans Viljoen, ‘Application of the African Charter on Human and Peoples’ Rights by Domestic Courts in Africa’ (1999) 43(1) Journal of African Law 1; Obiora Chinedu Okafor, The African Human Rights System: Activist Forces and International Institutions (Cambridge University Press, 2007) 91-219.
[33] Article 45 (1) (b), African Charter.
[34] Margit Tveiten, ‘Justiciability of Socio-Economic Rights: Reflections on Norwegian and South African Debate and Experience’ in Wenche Barth Eide and Uwe Kracht (eds), Food and Human Rights in Development-Volume I: Legal and Institutional Dimensions and Selected Topics (Intersentia, 2005) 163, 163.
[35] Philip Alston, ‘No Right to Complain about Being Poor: The Need for an Optional Protocol to the Economic Rights Covenant’ in Asbjorn Eide and Jan Helgesen (eds), The Future of Human Rights Protection in a Changing World: Fifty Years since the Four Freedoms Address-Essays in Honour of Torkel Opsahl (Norwegian University Press, 1991) 79, 92.
[36] Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted by the General Assembly resolution A/RES/63/117, on 10 December 2008.
[37] Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 3 January 1976.
[38] Chidi Anselm Odinkalu, ‘The Role of Case and Complaints Procedures in the Reform of the African Regional Human Rights System’ (2001) 1 African Human Rights Law Journal 225, 239.
[39] Carlson Anyangwe, ‘Obligations of State Parties to the African Charter on Human and Peoples’ Rights’ (1998) 10(4) African Journal of International and Comparative Law 625, 658.
[40] Nana K A Busia, Jr and Bibiane G Mbaye, ‘Filing Communications on Economic and Social Rights under the African Human and Peoples’ Charter (The Banjul Charter)’ (1996) 3(2) East African Journal of Peace and Human Rights 188, 197.
[41] It has been argued that, ‘[b]y holding that this right is implicitly protected, the Commission has cured one of the Charter’s glaring weaknesses.’ See Christopher Mbazira, ‘Reading the Right to Food into the African Charter on Human and Peoples’ Rights’ (2004) 5(1) ESR Review 5, 7.
[42] 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, 15th Annual Activity Report [59]-[65].
[43] Communication 211/98, Legal Resources Foundation v Zambia, 14th Annual Activity Report (2000-2001) [62].
[44] Odinkalu, above n 18, 366.
[45] Scheinin, above n 26, 6.
[46] Martin Scheinin, ‘Economic, Social and Cultural Rights: Modes of Enforcement’ (IHRC Conference, Dublin, 2005) 16 (unpublished, on file with the author).
[47] Busia and Mbaye, above n 40, 195. See also, generally, Jean-Francois Bayart, Stephen Ellis and Beatrice Hibbou, ‘From Kleptocracy to the Fellonious State?’ in Jean-Francois Bayart, Stephen Ellis and Beatrice Hibbou (eds), The Criminalization of the State in Africa (International African Institute and James Carey,1999) 1; Beatrice Hibbou, ‘The "Social Capital" of the State as an Agent of Deception or the Ruses of Economic Intelligence’ in Jean-Francois Bayart, Stephen Ellis, and Beatrice Hibbou (eds), The Criminalization of the State in Africa (International African Institute and James Carey, 1999) 69.
[48] Frans Viljoen, International Human Rights Law in Africa (Oxford University Press, 2007) 570.
[49] United Nations Development Programme (‘UNDP’), ‘Beyond Scarcity: Power, Poverty and the Global Water Crisis (Human Development Report 2006)’ (UNDP, 2006) 8-9.
[50] Scheinin, above n 26, 17.
[51] Viljoen, above n 48, 568-570; Tveiten, above n 34, 164-165.
[52] Alston, above n 35, 92.
[53] Takele Soboka Bulto, ‘Beyond the Promises: Resuscitating the State Reporting Procedure under the African Charter on Human and Peoples’ Rights’ (2006) 12 Buffalo Human Rights Law Review 57, 57.
[54] Ibid, 69-81. For a more elaborate analysis and proposed reforms, see: Malcolm Evans, and Rachel Murray, ‘The State Reporting Mechanism of the African Charter’ in Malcolm Evans and Rachel Murray (eds), The African Charter on Human and Peoples’ Rights: The System in Practice 1986-2006 (Cambridge University Press, 2008) 49; Frans Viljoen, ‘Examination of State Reports at the 27th Session of the African Commission on Human and Peoples’ Rights: A Critical Analysis and Proposal for Reform’ (2000) 16 South African Journal on Human Rights 576; Kofi Quashigah, ‘The African Charter on Human and Peoples’ Rights: Towards a More Effective Reporting Mechanism’ (2002) 2 African Human Rights Law Journal 261; George William Mugwanya, ‘Examination of State Reports by the African Commission: A Critical Appraisal’ (2001) 1 African Human Rights Law Journal 268.
[55] Ibid, 91-92.
[56] These are: Botswana, Côte D’Ivoire, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Guinea-Bissau, Liberia, Madagascar, Malawi, Sao Tome and Principe, Sierra Leone, and Somalia. See ‘Status on Submission of State Initial/Periodic Reports to the African Commission’,
<http://www.achpr.org/english/_info/statereport_considered_en.html> .
[57] Bulto, above n 53, 66.
[58] Alston, above n 35, 91.
[59] For practical examples, see, Opiata Odindo, ‘Litigation and Housing Rights in Kenya’ in Malcolm Langford and Bet Thiele John Squires (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (UNSW Press, 2005) 155, 157-166.
[60] Matthew Craven, ‘The Violence of Dispossession: Extra-Territoriality and Economic, Social and Cultural Rights’ in Baderin and McCorquodale (eds), above n 2, 81.
[61] Shedrack C Agbakwa, ‘Reclaiming Humanity: Economic, Social, and Cultural Rights as the Cornerstone of African Human Rights’ (2002) 5 Yale Human Rights and Development Law Journal 177, 179.
[62] Rolf Kunnemann, ‘A Coherent Approach to Human Rights’ (1995) 17 Human Rights Quarterly 323, 332.
[63] Narrated by Bruce Porter, ‘Claiming Adjudicative Space: Social Rights, Equality and Citizenship’ (2006), (unpublished, on file with the author) 1.
[64] Ibid.
[65] Under Article 30 of the African Charter, the Commission is entrusted with the duty ‘to promote human and peoples’ rights and ensure their protection in Africa.’
[66] Article 60, African Charter.
[67] The fact that the African Commission shall draw inspiration from the UN and regional human rights bodies does not imply a wholesale reproduction of the practices and jurisprudence of the latter bodies. It has to filter and use those which are relevant and, more importantly, are in line with the ‘the virtues of their [African States’] historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights. See Preamble of the African Charter, [5]. Accordingly, in the interpretation and applications of some of the rights and freedoms guaranteed under the Charter, there was an instance where the African Commission had to elaborate the meaning of specific terms and how their applications vary from their interpretations and applications within the UN system. A recent example arose when the UN concept of ‘Indigenous Peoples’ and their rights was found to be at variance with the African conception of the same and, as a result, the African states were on the brink of rejecting the Declaration altogether. See United Nations Declaration on the Rights of Indigenous Peoples, adopted by General Assembly Resolution 61/295 on 13 September 2007. The African Commission had to come up with its first ever Advisory Opinion to elaborate to the relevant UN bodies regarding the African understanding of the said concepts and the rights of the groups under consideration. See ‘Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples,’ adopted by the African Commission on Human and Peoples’ Rights at its 41st Ordinary Session held in May 2007 in Accra, Ghana.
[68] George William Mugwanya, Human Rights in Africa: Enhancing Human Rights Through the African Regional Human Rights System (Transnational Publishers, 2003) 190.
[69] It has been rightly asserted that the Commission would use only those practices and precedents which are in line with the letters and the spirit of the Charter, and the duty to draw inspiration from non-African legal sources does not necessarily imply, perhaps obviously, a wholesale grafting of the latter in the interpretation of the Charter. However, when the Charter is silent on certain aspects or all of a right deserving of protection, the Commission would borrow the principles applied at the level of other regional human rights jurisdictions and the UN bodies. See Odinkalu, above n 18, 352-354.
[70] See Heyns, above n 8, 688-689; Fatsah Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (Martinus Nijhoff, 2003) 567-568.
[71] The African Court on Human and Peoples Rights, established to ‘complement the protective mandate [case work] of the African Commission,’ has similarly wide latitude of sources of law to apply in reaching its decisions. See Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, adopted in Ouagadougou, Burkina Faso, on 9 June, 1998; entered into force on 25 January 2004. Under Article 7 of the Protocol, ‘[t]he Court shall apply the provision of the [African] Charter and any other relevant human rights instruments ratified by the States concerned.’ (Emphasis added). It is to be seen whether the Court will apply the provisions strictly and refer to non-African legal sources as primary sources in the resolution of contentious cases that would come before it, but, given the wordings of the provision, this possibility cannot be ruled out.
[72] Under Article 51 (1), the Charter provides that: ‘The Commission may ask the State concerned [defendant state] to provide it with all relevant information.’
[73] See (Joined) Communication Nos. Nos. 25/89, 47/90, 56/91, 100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Temoins de Jehovah v Zaire, 9th Annual Activity Report, 1995/1996 (AHG/207 (XXXII) [40].
[74] Communication 224/98, Media Rights Agenda v Nigeria, 14th Annual Activity Report, 2000-2001 (AHG/229(XXXVII), [27].
[75] Communication 211/98, above n 43, [59].
[76] Communication 225/98, Huri-Laws v Nigeria, 14th Annual Activity Report, 2000-2001 (AHG/229(XXXVII), [41].
[77] 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, 15th Annual Activity Report, [49], [57] and [66].
[78] Ibid, [63].
[79] Ibid.
[80] Communication 292/2004, Institute for Human Rights and Development in Africa v Republic of Angola, 24th Activity Report, 2007/2008, [78].
[81] The World Conference on Human rights declared: ‘All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.’ See United Nations General Assembly, Vienna Declaration and Program of Action, World Conference on Human Rights (A/CONF.157/23) (UN General Assembly 2003) [3].
[82] The drafting process of the African Charter during the heyday of the ideological divide of the Cold War era saw a diverging opinion in relation to the normative status to be accorder to socio-economic rights in the then impending instrument. On the one hand, there were states who sought to relegate the socio-economic rights as non-justiciable, programmatic aspirations and the civil and political rights as immediate, justiciable and definite rights. On the other hand, there were courtiers that saw the intricate relationship of the futures of socio-economic rights as a means of ensuring survival of millions of Africans. The latter view eventually prevailed, as it turned out, and it is now the case that socio-economic rights are deemed to be guarantees for civil and political rights. See initial draft of the Chapter by Keba Mbaya, ‘[Mbaye] Draft African Charter on Human and Peoples’ Rights’ (1999) printed in (2002) 4 Human Rights Law in Africa 65; Frans Viljoen, ‘The African Charter on Human and Peoples’ Rights: The Travuax Preparatoires in the Light of Subsequent Practice’ (2004) 25(9-12) Human Rights law Journal 313, 320.
[83] African Charter, preamble, [8].
[84] Richard Gittleman, ‘The African Charter on Human and Peoples’ Rights: A Legal Analysis’ (1981-1982) 22 Virginia Journal of International Law 667, 677; Agbakwa above n 61, 178.
[85] See Agbakwa, above n 61, 179.
[86] Heyns, above n 16, 137; Oloka-Onyango, ‘Reinforcing Marginalised Rights in an Age of Globalisation’, above n 17, 853-854.
[87] See Articles 19-24. See also Oloka-Onyango, Reinforcing Marginalised Rights in an Age of Globalisation’, above n 17.
[88] J Oloka-Onyango, ‘Human Rights and Sustainable Development in Contemporary Africa: A New Dawn, or Retreating Horizons?’ (2000) 6 Buffalo Human Rights Law Review 39, 49-50.
[89] Rose M D’Sa, ‘Human and People’s Rights: Distinctive Features of the African Charter’ (1985) 29(1) Journal of African law 72, 78.
[90] This is evident from the experience of the Inter-American regional human rights adjudication. See Tinta, above n 3, 438.
[91] Victor Dankwa, ‘The African Commission on Human and Peoples’ Rights' in Malcolm Langford (ed) Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies (Centre for Housing Rights and Evictions, 2003) 118; Ida Elisabeth Koch, ‘The Justiciability of Individisible Rights’ (2003) 72 Nordic Journal of International Law 3.
[92] 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, 15th Annual Activity Report.
[93] Ibid, [65].
[94] Ibid, [60]-[63].
[95] See Anton Kok and Malcolm Langford, ‘The Right to Water’ in Danie Brand and Christof Heyns (eds), Socio-Economic Rights in South Africa (Pretoria University Law Press, 2005) 191, 195-197.
[96] Communication 100/93, [47] (emphasis added).
[97] See CESCR, ‘General Comment No 15: Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights (Adopted 11-29 November 2002)’ (UN Committee on Economic, Social and Cultural Rights, 2002) [3].
[98] Gino J Naldi, ‘Limitation of Rights under the African Charter on Human and Peoples’ Rights: The Contribution of the African Commission on Human and Peoples’ Rights’ (2001) 17 South African Journal on Human Rights 109, 117.
[99] Nsongurua J Udombana, ‘Social Rights are Human Rights: Actualizing the Rights to Work and Social Security in Africa’ (2006) 39 Cornell International Law Journal 181, 203.
[100] Heyns, above n 8, 691.
[101] Pretoria Statement, above n 1.
[102] Ibid, [5]-[11].
[103] Ibid, [11].
[104] Khoza, above n 122, 334.
[105] See for instance, ‘The 35th Session of the African Commission on Human and People’s Rights, and the NGO Forum Preceding the Session,’ (2004) 5(3) ESR Review 17.
[106] See Part III A and B above.
[107] See Communication 227/1999, Democratic Republic of Congo v Burundi, Rwanda, Uganda, Para 98 (2006); Communication 105/93, 128/94, 152/96, Communication 54/91, 61/91, 98/93, 164/97, 196/97, 210/98, Malawi African Association and others v Mauritania, [128] (2000); SERAC case, above n 11, [59]-[62]; Communication 97/93, John k Modise v Botswana, [94] (2000).
[108] Communication 227/1999, above n 107 [88], [98]; Communication 25/89, 47/90, 56/91, 100/93, Free Legal assistance Group and others v Zaire (1995), [47]; Malawi African Association and Others v Mauritania (2000) [122].
[109] Communication 39/1990, Annette Pagnoulle (on behalf of Abdoulaye Mazou v Cameroon), 10th Annual Activity Report (1997), [30].
[110] Communication 25/89, 47/90, 56/91, 100/93, Free Legal assistance Group and others v Zaire, (1995) [47].
[111] SERAC case, above n 11, [60]-[65].
[112] See generally Khoza, above n 122.
[113] James L Cavallaro and Emily J Schaffer, ‘Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas’ (2004) 56 Hastings Law Journal 217, [5]-[9].
[114] Karon Monaghan, Max du Plessis and Tajinder Malhi (eds), Race, Religion and Ethnicity Discrimination: Using International Human Rights Law (2003) 9.
[115] Christopher McCruden, and Haris Kountouros, ‘Human Rights and European Equality Law’ in Equality Law in an Enlarged European Union: Understanding the Article 13 Directives (Justice Society, 2007) 73, 73.
[116] Cathi Albertyn, and Beth Goldblatt, ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 South African Journal on Human Rights 248, 249.
[117] Communication 253/2002, Antoine Bissangou v Republic of Congo, 21st Annual Activity Report (2006-2007), [68].
[118] Communication 293/2004, Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development v Republic Of Zimbabwe, 24th Annual Activity Report (2007-2008) [124].
[119] Mashood A Baderin, ‘The African Commission on Human and Peoples’ Rights and the Implementation of Economic, Social, and Cultural Rights’ in Baderin and Mccorquodale (eds), above n 2, 141.
[120] Ibid [125].
[121] International Association Autism-Europe (IAAE) v France (Complaint No. 13/2002).
[122] Ibid [54].
[123] Ibid [55].
[124] Gaygususz, Application No. 17371/90, 23 Eur. Ct H. R. 364 (1997).
[125] The Court ruled that ‘The notion of discrimination within the meaning of Article 14 includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention.’ See Case of Abdulaziz, Cabales and Balkandali v The United Kingdom, (Application No. 9214/80; 9473/81; 9474/81), judgment of 28 May 1985, [82].
[126] It stressed, ‘the principle of equality of treatment warrant taking the view that today the general rule is that Article 6 [1] (art. 6-1) does apply in the field of social insurance, including even welfare assistance.’ See Case of Schuler-Zgraggen v Switzerland (Application no. 14518/89), 24 June 1993, [46].
[127] Case 11.625, María Eugenia Morales de Sierra Guatemala (Judgement on Merits, January 19, 2001) [39].
[128] Advisory Opinion Oc-18/03 of September 17, 2003, Juridical Condition and Rights of the Undocumented Migrants, [149].
[129] See Communication No. 182/1984, Zwaan-de Vries v the Netherlands (9 April 1987).
[130] Ibid, [12.3] (emphasis added).
[131] (1997) 151 DLR (4th) 577 (SCC), [78].
[132] Plyler v Doe, [1982] USSC 182; 457 US 202 (1982).
[133] Ibid, [224] and [230].
[134] Cavallaro, above n 113, 258.
[135] Communications 147/95 and 149/96, Sir Dawda K Jawara v The Gambia, 13th Annual Activity Report, [31]-[32].
[136] Communication 231/99, Avocats Sans Frontie`res (on behalf of Gaëtan Bwampamye) v Burundi, 14th Annual Activity Report, [23].
[137] Article 1, African Charter.
[138] SERAC case, above n 11, [45].
[139] Ibid, [46].
[140] Ibid.
[141] Ibid, [47].
[142] See generally Mubngizi, above n 29; Viljoen above n 48, 568-585.
[143] See Government of the Republic of Namibia and others v Mwilima and Others (2002) NR 235 (SC), [53].
[144] SERAC case, above n 111, [37].
[145] Ibid.
[146] Article 2, African Charter.
[147] The African Commission stressed that the admissibility precondition that requires exhaustion of local remedies ‘ensures that the African Commission does not become a tribunal of first instance for cases for which an effective domestic remedy exists.’ See SERAC case, above n 11, [39].
[148] Nsongurua J Udombana, ‘The African Commission on Human and Peoples’ Rights and the Development of Fair Trial Norms in Africa’ (2006) 6 African Human Rights Law Journal 299, 311.
[149] Communication 129/94, Civil Liberties Organisation, 9th Annual Activity Report (1995-1996).
[150] Ibid, [8].
[151] Application No. 47760/99, ECHR, 20 June 2002.
[152] Communication 468/1991, Angel N Olo Bahamonde v Equatorial Guinea, CCPR/C/49/D/1991, [9.4].
[153] Communication 293/2004, above n 118 [124].
[154] See, generally, Kent Roach, ‘Crafting Remedies for Violations of Economic, Social and Cultural Rights’ in Malcolm Langford and Bet Thiele John Squires (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (2005) 111; Naldi, above n 100.
[155] Communication 641/1995, Gedumbe v Democratic Republic of Congo, decided at the 75th Session, 26 July 2002, CCPR/C/75/D/641/1995, [5.2].
[156] Communication 39/1990, above n 109, [29].
[157] Communication 253/2002, above n 117, [75].
[158] Ibid, [74]-[75].
[159] Communication 307/2005, Mr Obert Chinhamo v Zimbabwe, 23rd Annual Activity Report (2006-2007) [84].
[160] Communication 48/1990, 50/1991, 52/1991, 89/1993, Amnesty International and Others v Sudan, 13th Annual Activity Report, [62].
[161] Ibid, [69].
[162] See General Comment No 7: The Right to Adequate Housing (Art. 11 (1) of the Covenant): Forced Evictions (1997), [15].
[163] Goldberg v Kelly, [1970] USSC 68; 397 US 254 (1970).
[164] Ibid.
[165] Ibid.
[166] Communication 292/2004, above n 80, [76].
[167] See Inter-American Court of Human Rights, Exceptions to the Exhaustion of Domestic Remedies (Art 46 (1), 46 (2) (a) and 46 (2) (b) of the American Convention on Human Rights, Advisory Opinion OC-11/90, [28].
[168] Communication 468/1991 above n 152, [9.4].
[169] Article 7(1)(c), African Charter. According to the African Commission, ‘[t]he right to freely choose one’s counsel is essential to the assurance of a fair trial. To give the tribunal the power to veto the choice of counsel of defendants is an unacceptable infringement of this right.’ Communication 48/90, above n 16060 [64].
[170] Mauritania case, above n 9, [95].
[171] Melish, above n 22, 223.
[172] Communication 231/99, above n 136, [26].
[173] Liebenberg, above n 221, 73.
[174] Communication 275/2003, Article 19 v The State of Eritrea, 22nd Annual Activity Report (2006-2007) [75].
[175] See also Communication 204/97, Mouvement Burkinabe des de l’Homme et des Peoples v Burkina Faso, 14th Annual Activity Report, [40].
[176] Article 7(1)(d) African Charter; See also ibid [40].
[177] Communication 650/1995, Abdulaye Mazou v Cameroon, CCPR/C/72/D/650/1995, [9].
[178] Annette Pagnoule (on behalf of Abdoulaye Mazou) v Cameroon, 10th Annual Activity Report, [19].
[179] Article 56(5) African Charter.
[180] Communication 143/95 and 150/96, Constitutional Rights project and Civil Liberties organisation v Nigeria, 13th Annual Activity Report (1999-2000) [34].
[181] Communication 60/91, Constitutional Rights project (in Respect of Wahab Akamu, G Adega and Others) v Nigeria, 8th Annual Activity Report (1994-1995) [12].
[182] Mauritania case, above n 9 [98]-[100].
[183] Communication 48/1990, above n 160, [68].
[184] Ibid, [62].
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