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AJAH DAMIAN UCHE
COMPARATIVE APPRAISAL OF THE PROTECTION AND ENFORCEMENT OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS UNDER THE LAW IN SOUTH AFRICA, INDIA AND NIGERIA
LAW
Chukwuma Ugwuoke
Digitally Signed by: Content manager’s Name
DN : CN = Webmaster’s name
O= University of Nigeria, Nsukka
OU = Innovation Centre
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COMPARATIVE APPRAISAL OF THE PROTECTION AND ENFORCEMENT OF ECONOMIC, SOCIAL AND
CULTURAL RIGHTS UNDER THE LAW IN SOUTH AFRICA, INDIA AND NIGERIA
BY
AJAH DAMIAN UCHE PG/LL.M/06/46045
DEPARTMENT OF PUBLIC AND PRIVATE LAW FACULTY OF LAW
UNIVERSITY OF NIGERIA,
ENUGU CAMPUS
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TITLE PAGE
COMPARATIVE APPRAISAL OF THE PROTECTION AND ENFORCEMENT OF ECONOMIC, SOCIAL AND
CULTURAL RIGHTS UNDER THE LAW IN SOUTH AFRICA, INDIA AND NIGERIA.
BY
AJAH DAMIAN UCHE
PG/LL.M/06/46045
BEING A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE
AWARD OF THE LL.M DEGREE OF THE
UNIVERSITY OF NIGERIA,
ENUGU CAMPUS.
SUPERVISOR: PROFESSOR G. O. S AMADI.
DECEMBER, 2013.
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ACKNOWLEDGEMENTS
My special gratitude goes to God, the Almighty, who, in spite of my innumerable inadequacies, has remained faithful to me and made it possible for this dream to come true. In a very special way, I am unquantifiably indebted to my supervisor, very learned and erudite Professor G. O. S. Amadi for his paternal guidance and uncompromising insistence on quality research. I also owe a debt of gratitude to His Lordship Hon. Justice (Dr.) C. C. Nweze of the Court of Appeal, for the privilege I had of sipping from his deep intellectual spring, as his postgraduate student, and for obliging me the use of some of his materials for this dissertation. In fact, his inimitable erudition and effortless demonstration of mastery and clear grasp of issues in International Human Rights Law inspired my research interest in this interesting area of law.
My gratitude also goes to Prof. Ifeoma P. Enemo, the Deputy Vice Chancellor of University of Nigeria, Enugu Campus and Dr.(Mrs.) Edith Nwosu for their encouragement and motivation. The invaluable support and brotherly dispositions of the entire staff of the Faculty of Law, UNN, academic and non-academic, which greatly contributed to the successful completion of this dissertation cannot be forgotten in a hurry. We are family.
I lack words to adequately convey the depth of my gratitude to my loving wife, sister and friend, His Worship (Mrs.) Jane-Frances Ngozi Ajah for her love, care, encouragement, motivation, patience, tolerance, and understanding at all times. She is a rare breed. To the entire Ajah family, my son, Byron Oluebubechukwu, my sister, Ifunanya, my sweet mother, Mrs. Agnes Ajah-Umele, and smart Ijeoma, I say thank you all for all your prayers and may God bless you.
Also, I am very grateful to Barr. Festus Ukwueze who was never tired of picking my question-bearing phone calls, and to Onyekachi Ugwuanyi, the computer whiz-kid, my ICT consultant whose magic fingers transformed my hand-written thoughts into this present form. May God bless you all.
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CERTIFICATION
This is to certify that this research work was carried out by Ajah Damian Uche, a
postgraduate student in the Department of Public and Private Law with registration number
PG/LL.M/06/46045, for the award of Master of Laws (LL.M) degree.
This dissertation is original and has not been submitted in part or in full for the award of any
other diploma or degree in this or any other institution.
…………………………… ……………..………...…………………………
AJAH, DAMIAN UCHE. PROFESSOR G. O. S. AMADI Student Supervisor
Date:…………………… Date:……………………
…………………………… ……………………………………………
BARR. S. I. NWATU PROF. IFEOMA P. ENEMO
Head of Department Deputy Vice Chancellor/Supervising Dean,
Faculty of Law
Date:………………………. Date:……………………………………
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DEDICATION
This dissertation is dedicated to God Almighty.
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TABLE OF CONTENTS
Title Page………………………………………………………………………………. i
Dedication………………………………………………………………………………ii
Acknowledgements……………………………………………………………………...iii
Abstract…………………………………………………………………………………iv
Table of Contents……………………………………………………………………….v
Table of Cases…………………………………………………………………………..xii
Table of Statutes..………………………………………………………………………xx
Table of Abbreviations………………………………………………………………….xxxii
CHAPTER ONE: GENERAL INTRODUCTION
1.1 Background of the Study………………………………………………….……. 1
1.2 Statement of the Problem………………………………………………………. 4
1.3 Research Questions…………………………………………………………….. 5
1.4 Literature Review…………………………………………………………......... 6
1.5 Objectives of the Study……………………………………………….……….. 13
1.6 Methodology………………………………………………………………….. 14
1.7 Scope of the Study……………………………………………………………. 14
CHAPTER TWO: THE ORIGINS OF THE CONCEPT OF HUMAN RIGHTS AND
THE EVOLUTION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN
HUMAN RIGHTS JURISPRUDENCE
2.1 Introduction…………………………………………………………………… 15
2.2 The Origins of the Concept of Human Rights………………………………… 15
viii
2.2.1 Philosophical Origins of the Concept……………………………………... 15
2.2.2 Religious Foundations of the Concept………………………………..…… 21
2.2.2.1 Judaism………………………………………………………………….… 22
2.2.2.2 Christianity………………………………………………………………... 23
2.2.2.3 Islam……………………………………………………………………….. 24
2.2.3 Afro-cultural Notions……………………………………………………... 25
2.3 Evolution of the Concept of Economic, Social and Cultural Rights in
Human Rights Jurisprudence………………………………………………..... 27
2.3.1 Economic, Social and Cultural Rights……………………………………….. 27
2.3.2 Tracing the Evolution of the Concept of Economic, Social and Cultural
Rights in Human Rights Jurisprudence………………………………………. 28
2.3.3 The Normative Framework on Economic, Social and Cultural Rights…….. 34
2.3.3.1 The International Covenant on Economic Social and Cultural Rights……….. 35
2.3.3.1.1 Rights Contained in the Covenant…………………………………….. 36
2.3.3.1.2 Mechanisms for Implementation and Enforcement…………………… 39
2.3.3.2 The African Charter on Human and Peoples Rights (ACHPR)………….. 43
2.3.3.2.1 Implementation Mechanisms of the Rights under the ACHPR……… 44
2.4 Conclusion………………………………………………………………… 48
CHAPTER THREE: CHALLENGES TO THE PROTECTION AND
ENFORCEMENT OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS
3.1 Introduction………………………………………………………………… 49
3.2 The Fallacy of Categorisation…………………………………………… 49
3.3 Alleged Differences in the Legal Nature of ESC Rights and that of
Civil and Political Rights……………………………….......................... 52
3.4 Non-justiciability of Economic, Social and Cultural Rights………………… 57
ix
3.4.1 The Question of Legitimacy of Judicial Intervention…………………… 58
3.4.2 The Question of Courts Institutional Competence to Intervene………… 61
3.4.3 The Alleged Vagueness and Uncertainty in Content of Economic,
Social and Cultural Rights……………………………………………… 64
3.4.3.1 Core Content or Minimum Core Duties………………………………… 66
3.4.3.2 Duties of Immediate Effect and Duties Linked with the
Progressive Realisation…………………………………………………… 66
3.4.3.3 Prohibition of Retrogressive Measures…………………………………… 67
3.4.3.4 Assessing the Reasonableness, Adequacy and Proportionality of Measures….68
3.4.3.5 Duties to Respect, Protect and Fulfill…………………………………….. 68
3.4.3.6 Applying the Principles of Non-discrimination and Equal
Protection of the Law…………………………………………………..… 69
3.5 Other Challenges………………………………….……………………… 70
3.6 Conclusion………………………………………………………………… 78
CHAPTER FOUR: SOUTH AFRICAN EXPERIENCE
4.1 Introduction……………………………………………………………….. 80
4.2 Constitutional Protection of Economic, Social and Cultural Rights in
South Africa………………………………………………………………. 81
4.2.1 A Historical Overview………………………………………………… 81
4.2.2 Economic, Social and Cultural Rights under the 1996 Constitution…… 84
4.3 Statutory Institutional Mechanisms for the Protection and
Enforcement of ESC Rights………………………………………………..…88
4.3.1 The South African Human Rights Commission…………………………… 88
4.3.2 Office of the Public Protector…………………………………………… 88
x
4.3.3 Commission for the Protection of the Rights of Cultural, Religious and Linguistic
Communities …………………………………………………………………92
4.4 Periodic Reports of Compliance with the provisions of the ICESCR……… 92
4.5 Judicial Protection and Enforcement of Economic, Social and Cultural
Rights…………………………………………………………..…….……. 93
4.5.1 Right of Access to Adequate Healthcare Services and Emergency
Medical Treatment……………………………………………………….. 94
4.5.2 Right of Access to Adequate Housing…………………………………… 96
4.5.3 Right of Access to Adequate Healthcare: The TAC Case…….………… 98
4.5.4 Right to Adequate Water Supply………………………………………….. 101
4.5.5 Right of Access to Social Security and Assistance………………………… 102
4.6 The African Human Rights System…………………………………….... 102
4.7 Evaluation the South African Experience……………………………….. 103
4.8 Conclusion……………………………………………………………… 108
CHAPTER FIVE: THE INDIAN EXPERIENCE
5.1 Introduction…………………………………………………………...... 110
5.2 Brief Historical Overview of Constitutional Rights in India…………. 110
5.3 Economic, Social and Cultural Rights under the Indian Constitution…. 112
5.4 Statutory Institutional Mechanisms for the Protection and
Enforcement of the ESC Rights………………………………………… 114
5.5 Periodic Reports of Compliance with the Provisions of the ICESCR…… 118
5.5.1 On Legal Matters/Lack of Implementation……………………………… 118
5.5.2 On Healthcare, Housing and Water Supply……………………………… 119
5.5.3 On Education and Employment………………………………………….. 120
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5.6 Judicial Protection and Enforcement of Economic, Social
and Cultural Rights……………………………………………………….. 122
5.6.1 Right to Health……………………………………………………………. 123
5.6.2 Right to Education………………………………………………………… 125
5.6.3 Right to Food………………………………………………………………. 127
5.6.4 Right to Work……………………………………………………………… 128
5.6.5 Right to Shelter…………………………………………………………….. 130
5.6.6 Strategies for India’s Judicial Success……………………………………... 132
5.7 Evaluating the Indian Experience………………………………………….. 138
5.8 Conclusion…………………………………………………………………. 141
CHAPTER SIX: THE NIGERIAN EXPERIENCE
6.1 Introduction……………………………………………………………….. 143
6.2 Economic, Social and Cultural Rights under the 1999 Constitution
(as amended)……………………………………………………….……… 144
6.3 Statutory Institutional Mechanisms for the Protection and
Enforcement of ESC Rights……………………………………………….. 148
6.4 Periodic Reports of Compliance with the Provisions of the ICESCR……… 153
6.4.1 Right to Education………………………………………………………….. 154
6.4.2 Right to Work and Right to Adequate Standard of Living…………………. 155
6.4.3 Right to Form and Join Trade Unions………………………………………. 156
6.4.4 Right to Adequate Housing…………………………………………………. 156
6.4.5 Right to Health……………………………………………………………… 157
6.4.6 Right to Food……………………………………………………………….. 157
6.5 Nigeria’s Country Reports of Compliance with the Provisions of other ESC
Rights Instruments……………………………………………………………158
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6.6 Nigeria’s Presidential Midterm Report……………………………………….159
6.7 Judicial Attitude to the Protection and Enforcement of ESC Rights………. 160
6.7.1 Nigerian Municipal Courts and the Protection and Enforcement
of ESC Rights………………………………………………………………. 166
6.8 Exploiting the African Human Rights System……………………………… 171
6.9 Evaluating the Nigerian Experience………………………………………. 174
7.0 Conclusion………………………………………………………………… 177
CHAPTER SEVEN: SUMMARY OF FINDINGS, RECOMMENDATIONS AND
CONCLUSION
7.1 Introduction………………………………………………………………….. 178
7.2 Summary of Findings………………………………………………………… 178
7.2.1 Comparative Appraisal of the Three Jurisdictions……………………….. 178
7.2.1.1 On Constitutional Protection of ESC Rights………………………………... 179
7.2.1.2 On Statutory Institutional Mechanisms for Protection and Enforcement…… 180
7.2.1.3 On Periodic Reports to the UN Committee on Economic,
Social and Cultural Rights,………………………………………………….. 183
7.2.1.4 On Judicial Attitude…………………………………………………………. 184
7.2.2 General Findings……………………………………………………………. 191
7.3 Recommendations………………………………………………………….. 192
7.3.1 On Constitutional Protection………………………………………………. 192
7.3.2 On Statutory Institutional Mechanisms…………………………………... 193
7.3.3 On Periodic Reports of Compliance with the Provisions of the ICESCR….. 196
7.3.4 On Judicial Attitude……………………………………………………… 198
7.3.5 General Recommendations………………………………………………. 203
7.4 Conclusion……………………………………………………………….. 206
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TABLE OF CASES
A.G Ondo State v. A.G Federation (2002) 27 WRN1-231 ……161,162, 183
A.K Gopalan v. State of Madras (1950) SCR 8 ………………129
Abacha v. Fawehinmi (2000)6 NWLR (Pt. 600), 228. …………158,164
Adesanya v. President of the Federal Republic of Nigeria (2002)
WRN……………………………………………………………80, 154.155
Adewole v. Jakande (1981) NCLR 264 ………………163
Ahmedabad Municipical Corporation V. Nawab Khan Gulab Khan (1997)
11 SCC 123 …………………………………..126
Ain O Salish Kendra (ASK) v. Government of Bangladesh & ORS 19 BLD
(1999) 488 ………………………………………………………………65
Air India Statutory Corporation v. United Labour Union ( 1997) 9 SCC
425………………………………………………………………………..126
Aiyeyemi and Others v. The Government of Lagos State and Others
(Unreported Suit No m/474/2003) ……………163
Alhaji Gombe v. P.W ( Nig.) Ltd ( 1995) 6 NWLR (pt. 402) ………..154
Alimiton H. Patel v. Union of India (2000) 3 SCC 575, (2000)8 SCC 19,
(2000) 2 SCC 679 ………………………............................126
Aquino, Isacio C Cargo Servicios Industriales SA, s/accidents ley 9.668,
Supreme Court of Argentina……………………………………………65
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14
Archbishop Okogie v. the Attorney General of Lagos State (1981) 2 NCLR
………………………………………….141, 159, 162,163
Baartman & Ors. v. Port Elizabeth Municipality, Supreme court of Appeal
Case 446/2002 ……………………100
Balco Employees Union v. Union of India ( 2002)1 SSC 413…………..125
Bandhau Mukti Morcha v. Union of India (1984) 3 SSC 161…. 124,130
Berende v. Usman (2005) 14 NWLR ( pt. 944) …………….154
Brooks v. Netherlands, Communication 172/1984, April 9, 1984………..66
C 931-2004 CCC………………………………………………………..66
C 991-2004 CCC……………………………………………………….66
Campaign for Fiscal Equity v. State of New York et al, 710 NYS 2d475,
January 9, 2001……………………………………………………………..66
Central Inland Water Transport Corporation v. Brijo Nath Ganguly (1986)
3 SCC 227……………………………………………………………….124
City of Cape Town v. Rudolph & Ors. Cape Provisional Division Case No.
8860/01 ………100
City of Cape v. The Various Occupiers of the Road Reserve of Appellate
Parallel to Shefield in Philipi, Cape Provincial Division Case A/5/2003
……………………………………………………………………….….100
Consumer Education and Research Centre v. Union of India(1995)3SCC 42
……………………………………………………………………….. 120
xiii
15
Daily Rated Casual Labour Employed under P& T Department v. Union of
India (1988) 1 SCC 122 …………………………..………………….124
Dharwad PWD Employees Association v. State of Karnataka(1990) 2 SCC
396 ………………………………………………………………………124
Drug Action Forum v. Union of India (1997) 6 SCC 609 ………... …120
Ex parte Chairperson of the Constitutional Assembly on Re Certification of
the Constitution of the Republic of South Africa (1996) 1996 (4) SA 744
(CC) ………………………………………………………80
Etcheverry v. Omint (1999) – Attorney General’s brief, Judgment delivered
on March 13, 2001……………………………………………………..67
Fawehinmi v. Col. Akilu (1987) 4 NWLR ( pt. 67) …….154
Federal Republic of Nigeria v. Alhaji Mika Anaeche and Ors (2004) 14
WRN …………………………………………………160
Francis Coralie Mullin v. The Administrative of Union of India (1981)
SSCR 516 …………………….129
Free Legal Assistance Group, Lawyers Committee for Human-Rights, Union
des. Droit de Home, les Temoin & de Jehova v. Zaira comm. Nos. 25/89,
47,90, 56,91, 100/93 (joined)(1995)……………………………………66
Government of the Republic of South Africa v. Grootboom & Ors. 2001 (1)
SA 46 (CC); 2000 (11) BCLR 1169 (CC) ……………….… 54,94,95,96,
97,99,100,101,102,103,104,123
……………………………………………………………………..177,178.
xiv
16
Hussainara Khatoon v. State of Bihar (1991) 1 SSC 598 ………130
Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (pt. 4980) ………….…..158
International Association Autism –Europe v. France, Complaint No. 1/2002, November 7, 2003, European Committee of Social Rights. ………………………………………………..……………………..67 Ituango Massacres V Colombia July 1, 2006…………………………… 65
Jacob M. Puthuparamibil v.Kerala Water Authority (1991) 1SSC 2 …126
K. Rajendran v. State of Tamil Nadu (1987) 2 SSC 425 …….. …… 124
Kaur v. State of Punjab (1999) 25CC 131 ……………………… 113
Kerela v. NM Thomas (1976) 2SCC 310 ………………133
Kesavenanda Bharati v. State of Kerala (1983)4 SCC 225…...118, 28,173
Khosa and Ors. v. Minister of Social Development and Ors. 2004 (6) SA 505
CC…………………………………………………………………..…68, 98
M. C Mehta v. Union of India (1988) 8SCC 206 ……………..132
M.C Mehta v. Union of India (1988) SC 115 ……………..132
M.C. Mehta v. State of Tamil Nadu & Ors. ………... 122
Malawi African Association & Ors v. Mauritania, Comm. Nos 54/91, 61/91,
98/93, 164/97-196/979, and 210/98 (2000) May 11, 2000 (African
Commission on Human and Peoples Rights)……………………………65
Maneka Gendhi v. Union of India (1978) 1 SCC 243 ………..128, 129
Manqele v. Durban Transitional Metropolitan Council (2001) JOL 8956 -98
Mapiripan Massacre v. Colombia (2005) lnter –American Crt. HR…….67
Minerva Mills v. Union of India ( 1980) 3 SCC 625 …….128
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17
Minister of Health & Ors. v. Treatment Action Campaign & Ors. 2002 (5)
SA 703 (CC), (2002) 45 WRN 94 …….92, 94, 96, 99,102, 103,120, 135,
177, 178
Mohini Jain v. State of Kernataka (1992) 3 SSC 666…………………….121
Municipal Corporation of Delhi v. Gurnam Kalir (1989)1 SSC ….127
Namanda Bachao Andolan v. Union of India ( 2000) 10 SCC 664 ...125
National Human Rights Commision of India v. State of Arunchal Pradesh,
AIR 1966, SC. 123………………………… 111, 174
National Textile Workers Union v. Union V.P.R .Ramakrishnan (1983) 1
SCC 249 …………………………………..125
Ogugu v. State (1994) 9 NWLR …….. ……….165
Okechukwu v. Etukokwu (1998) 8 NWRL (pt. 562) 513 ……….155
Olga Tellis & Ors v. Bombay Municipal Council (1985) Supp.
SCR 51……..65
Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545…… 126
Oronto Druglas v. Shell petroleum development Company Ltd(1999) 2
NWRL (pt. 591) ………………….163
Oshevire v. British Caledonia Airways (1990)7 NWLR (pt. 163)489….. 158
Owodunmi v. Registered Trustees of the Celestial Church and Others (2000)
10 NWLR (pt. 675) 315 ……………………………………………….155
Pam v. Mohammed (2008) 40 WRN 67 ……. …….. 154
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18
Paschim Banga Khet Mazadoor Samity v. State of Bengal (1996) SSC
37……………………………………………………….. 119, 132, 134, 180
Peoples Union for Civil Liberties (PUCL) v. Union of India (2001) 5
SCALE 302………………………………………………..123, 132, 135, 180
Peoples Union for Civil Liberties v. Union of India & Ors (2003) ……….67
PI US 42/04, June 6, 2006, The Constitutional Court of the Czech
Republic………………………………………………………………..66
RE 436996, 2005, The Federal Supreme Court of Brazil………………….64
Residents of Bon Vista Mansions v. South Metropolitan Local Council 2002
(6) BCLR 625 (W) ……...98
Reynoso Nida Noemi C/NSIP, s/amparo ,May 16, 2006, Supreme Court of
Argentina………………………………………………………………….. 64
S. Jagomath v. Union of India (1997) 7 SCC 647 ……………....133
S. v. Makwanyane & Anor. (1995) CCT 3/94 (S. Africa) ………..101
SERAC and CESR v. Nigeria, Communication No. 155/96, Oct. 12-27,
2002……………………………………………………………………..67
Shanti Star Builders v. Norayan K. Totame (1990)1 SSC 520 …………126
Sheelal Barse v. Union of India (1993) 4SCC 204 ……………………..120
Social and Economic Rights Action Centre (SERAC) and Anor. v. Nigeria
(2001) AHRLR 60 ……………….165
Sodan Singh v. NDMC (1989) 4 SCC 155 ……….127
xvii
19
Soobramoney v. Minister of Health, Kwazulu- Natal 1988 (1) SA 765
(CCC), 1997 (12) BCLR 1696 ……….. 90, 120, 135
State of Madiya Pradesh (1994) 5 SCC 27………………………………121
State of Madras v. Champakan Durairajan (1951) SCR 525………118, 135
State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 645…....................121
Supreme Court Legal Aid Committee v.State of Madiya Pradesh(1994) 5
SCC 25 ………………………………………………………….. 120
T 671/2002CCC……………………………………………………….65
T 789/2002 CCC ………........................................................................65
T.N . Godavarman Tirumukpad v. Union of India ( 1997) 2 SSC 267…..125
T.N . Godavarman Tirumukpad v. Union of India (2000) 6 SCC 413…..125
The Islamic Community in Bosnia and Herzegovina v. The Republic Srpska
CH/96/29………………………………………………………………….67
The Registered Trustees of National Association of Community Health
Practitioners of Nigeria v. Medical and Health Workers Union of
Nigeria(2008) 37 WRN 1 ….158
The Registered Trustees of Socio-Economic Rights and Accountability
Project (SERAP) v. Federal Republic Of Nigeria and Universal Basic
Education, Suit No. ECW/CCJ/APP/08/08………………………….166
Union of India (1995) 3 SCC 4………………………………………….132
Union of India v. Raghubir Singh (1989) 2 SCC 754 ………128
xviii
20
Unnikrishnan J.P v. State of Andhra Pradesh (1993) 1 SSC
645…………………………………… 53,121, 122, 135
US Department of Agriculture v. Moreno, 413 US 528, June, 1993 US SC-66
Uzoukwu v. Ezeonu 11 (1991) 6 NWRL (pt. 200) 160
V v. Einwohrneergemeine x and Regiemingstrat des Kanton Bean, B
9E/ATF 121/367, October 27, 1995, Swiss Federal Court.………………64
Van Biljon v. Minister of Correctional Services 1997 (6) BCLR 789 ….. 92
Van Rooyen & Ors. v. Stoltz & Ors., Cape Provisional Division Case No
8618/01 …………………….100
Vellore Citizens’ Welfare Forum v. Union of India ( 1996) 7 SCC…….133
Vincent Pannikulangura v. Union of India (1987) 2 SCC 165…………120
Vishaka v. State of Rajasthan (1997)6 SSC 241……………………124, 132
Waman Rao v. Union of India (1981) 3 SCC 362 ……………128
Ylimaz Dogman v. The Netherlands , Communication No. 1/1984, UN
Committee on the Elimination of Racial Discrimination, September 29,
1998………………………………………………………………………68
Zwan de Vries v. The Netherlands, Communication 182/1984, April 9,
1987…………….………………………………………………………..68
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xxi
TABLE OF STATUTES AND TREATIES
Nigerian Legislation:
African Charter on Human and Peoples’ Rights (Ratification and
Enforcement) Act. Cap. A9 Laws of the Federation of Nigeria, 2004 .…164
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Secs. 13-24 141
Sec. 16 (1), (2 ) and (3) 141
Sec. 16 (2) (d) 141
Sec. 17 (2) (d) 141
Sec. 17 (3) (a) 141
Sec. 17 (3) (b) 142
Sec. 17 (3) (c) 142
Sec. 17 (3) (d) 142
Sec. 17 (3) (e) 142
Sec. 17 (3) (f) 142
Sec. 18 (3) (a) 142
Sec. 18 (3) (b) 142
Sec. 18 ( 3) (e) 142
Sec. 18 (3) (d) 142
Sec. 18 (1) 142
Sec. 14 (1) 143
xxii
Sec. 17(1) (d) 143
Sec. 6 (6) (b) 156, 157
Sec. 6 (6) (b) 156, 158, 161, 162, 172, 180, 181
Sec, 12 (1) 156, 159
Sec. 15 ( 5) 162, 181
Item 60 (a) Second Schedule 162,180, 181
Sec. 4 162, 180, 181
Sec. 46 164
Freedom of Information Act, 2011 ……………….. 197
Fundamental Rights (Enforcement Procedure) Rules, 2009. …….158
National Human Rights Commission of Nigeria Act Cap. N46, LFN 2004 (as
amended in 2010) …..146
Sec. 5 (a) 145
Sec. 5 (d) 145
Sec. 5 (e) 145
Sec. 5 (g) 145
Sec. 5 (j) 146
Sec. 5 (k) 146
Sec. 5 (0) 146
Sec. 5 (p) 146,
Sec. 6 (1) (a) 147
xxiii
Sec. 6 (1) (b) 148
Sec. 6 (1) (d) 148
Sec. 6 (1) (e) 148
Sec. 12 (2) 148
Sec. 14 148
Sec. 15 148
Sec. 12 175
Sec. 18 175
Sec. 10 148, 175
Sec. 21 148
Sec. 6 (3) 148
Sec. 22 (1) 148
Sec. 22 (2) 148
Sec. 2 (1) 149
Sec. 2 (3) (b) 149
Sec. 5 (p) 149, 174
Sec. 7 174
Sec. 7 (b) 181
The Constitution of Nigeria, 1979 139
Sec. 6 (6) (b) 154, 165
Sec. 16 (1)(c) 160, 162
xxiv
Sec. 230 165
Sec. 236 165
The Constitution of Nigeria, 1960 139
The Constitution of Nigeria, 1963 139
The Constitution of Nigeria, (Draft) 1989 139
The Constitution of Nigeria, (Draft) 1995 139
Foreign Legislation:
Bonded Labour System (Abolition) Act of India, 1976 124
Constitution of India, 1950
Art. 21 108, 120,121,122,124,125,126,128
Art. 14 108, 125
Art. 15 108, 127
Art. 16 108
Art. 17 108
Art. 18 108
Art. 5 (c) 133
Art. 19 ( 1)(a) 108
xxv
Art. 19 ( l) (g) 125
Art. 19 (2) 108
Art 21 A 110
Art. 32 108
Art. 39 124, 126
Art. 39 (a) 109, 135
Art. 38 123, 126
Art. 45 109, 121, 122
Art. 47 109, 119
Art. 43 109, 123,136
Art. 37 109, 118, 127, 157, 172
Art. 42 109, 125, 135
Art. 41 109, 123,135
Art. 41 (c) 138
Art. 47 135
Art. 11 125
Art. 46 126
Art. 39 (b) 128
Art. 39 ( c) 128
Art. 39 (d) 135
Art. 226 108
Art. 253 135
xxvi
Art. 51 (c) 135
Constitution of Mexico, 1917 27
Constitution of South Africa, 1996.
Sec. 7 (2) 99, 178
Sec. 23 82, 83, 99
Sec. 24 82, 83, 99
Sec. 25 82, 99
Sec 26 82, 93, 99, 103
Sec. 27 82, 99, 103
Sec. 27 (1) ( c) 98
Sec. 29 82
Sec. 24 (a) 83
Sec. 24 ( b) 83
Sec. 26 (1) 84, 92, 93, 95
Sec. 25 (5) 84
Sec. 28 84
Sec. 29 84
Sec. 26 (2) 85
Sec. 27 (2) 85, 91
Sec. 184 (3) 86, 87
Sec. 182 88
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Sec 27 (3) 91
Sec. 28 (1) (c ) 92, 95, 97
Sec. 35 (2) (c) 96
Sec. 39 (1) 96
Sec. 27 (1) (a) 98
Sec. 9 (3) 93
Sec. 39 100
Sec. 184 (a) 174
Sec. 232 100, 101,178
Sec. 231 (2) 101, 178
Sec. 231 (3) 101,178
Sec. 231 (4) 101,178
Constitution of the United States of America, 1787 20
Equal Labour ( Prohibition Regulation) Act of India, 1986. 135
Factory Act of the United Kingdom , 1833 30
French Declaration of the Rights of Man and of the Citizen, 1789 20
Health and Morals Act, 1802 29
Indian Constitution (8TH Amendment) Act, 2002 122
Legal Services Authorities Act of India, 1987 135
Mental Health Act of India, 1987 135
Mines Regulation Act of England, 1842 23
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Minimum Wages Act of India, 1948 124, 135
National Rural Employment Guarantee Act of India, 2005 135
Polish Constitution, 1791 20
South African Freedom Charter of 1955
The Protection of Human Rights Act of India, 1993.
Sec. 2 (1) 111
Sec. 12 112
Sec. 12 (a) 110
Sec. 12 (d) 111
Sec. 12 (f) 111
Sec. 12 ( j) 111
Sec. 32 (1) 112
Sec. 11 (1) 112
Sec. 18 (1) 112, 174
United State of America Bill of Rights, 1791 20
Treaties.
Additional Protocol in the Area of Economic, Social and Cultural Rights to
the American Convention on Human Rights (Protocol of San Salvador), 1988
3
African Charter on Human and People’s Rights, 1981 32, 41
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Art. 15 41
Art. 16 41, 44, 165
Art.17 41
Art. 18 41,165
Art. 22 41,165
Art. 24 41,165
Art. 14 42,165
Art .4 44, 165
Art. 30 42
Art. 31 43
Art. 45 42
Art. 45 (2) 43
Art. 45 (3) 43
Art. 50 43
Art. 55 (1) 43
Art. 56 43
Art. 55(1)(i) 43
Art. 6 165
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) 1979 32
Convention on the Rights of the Child, 1989 32
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Declaration on Social Progress and Development, 1969 32
European Social Charter (revised, 1996) 32
International Convention on the Protection of the Rights of Migrants
Workers and Members of their Family, 1990 32
International Covenant on Civil and Political Rights, 1966 3, 32, 39
Art.22 48
Art.13 48
International Covenant on Economic, Social and Cultural Rights, 1966
Art. 6 35, 36
Art. 7 35, 36
Art 8 35, 48
Art. 9 35, 36
Art. 10 35
Art. 11 35, 126
Art. 12 35
Art. 13 35
Art. 14 35
Art. 15 35
Art. 10 (1), (2), (3), 36
Art. 11 (1) 36
Art. 11 (2) 36
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Art. 66 36
Art. 16(1) 37
Art. 16 (2)(a) 37
Art. 16 38
Art. 17 38
Art. 18 49
Art. 2 (1) 52, 85
Art. 2(2) 52
International Covenant on the Elimination of all Forms of Racial
Discrimination 32
Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights, 2009
Art. 2 40
Art. 3(1) 40
Art. 11 40
Protocol to the African Charter on Human and Peoples’ Rights
Art.3 45
Art.4 45
Art. 5(1) 45
Art.7 45
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The United Nations Charter, 1945 1
Art.1 1
Universal Declaration of Human Rights, 1948
Arts. 22-27 2, 35
Art. 25(1) and (2) 36
Art. 23(1)(2)and(4) 35, 36
Art. 8 190
Art. 28 48
Vienna Declaration and Programme of Action, 1993 49
Vienna Convention on the Law of Treaties, 1969
Art. 27 190
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TABLE OF ABBREVIATIONS
ACHPR Africa Charter on Human and Peoples’ Right
Afr. J. Legal Stud. Africa Journal of Legal Studies
AHRLJ Africa Human Rights Law Journal
AHRLR Africa Human Rights Law Reports
AIR All India Reporter
AU Africa Union
BCLR British Columbia Law Report
BLD Bangladesh Law Division
Buff. Hum. Rts. L. Rev. Buffalo Human Rights Law Review
CALS Centre for Applied Legal Studies
Cambridge L.J Cambridge Law Journal
CC Constitutional Court (South Africa)
CEDAW Convention on the Elimination of Discrimination Against Women
CESCR Committee on Economic, Social and Cultural Rights of the United
Nations
CESR Centre for Economic and Social Rights
CIDJAP Centre for International Development Justice and Peace
CKGR Central Kalahari Game Reserve
CLC Community Law Center
COHRE Center on Housing Rights Evictions
DPSP Directive Principles of State Policy
ECOSOC Economic and Social Council of the United Nations
ECOWAS Economic Community of West African States
ESR Rev. Economic and Social Rights Review
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FODPSP Fundamental Objectives and Directive Principles of State Policy
FOREIGN AFF Foreign Affairs
Harv. Hum. Rts. J Harvard Human Rights Quarterly
Hum. Rts. Q. Human Rights Quarterly
IC Indian Constitution
ICCPR International Covenant on the Civil and Political Rights
ICEAFRD International Covenant on the Elimination of All Forms of Racial
Discrimination
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Commission of Jurists
IMF International Monetary Fund
Int’l Law Journal International Law Journal
J. Mod. Afr. Stud. Journal of Modern African Studies
NCLR Nigerian Constitutional Law Report
NGO Non-Governmental Organization
NHRCI National Human Rights Commission of India
NWLR Nigeria Weekly Law Reports
OP-ICESCR Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights
PHRA Protection of Human Rights Act
SA South Africa
SAHRC South African Human Rights Commission
SAJHR South African Journal on Human Rights
SALJ South African Law Journal
SANGOCO South African National NGO Coalition
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SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
SERAC Social and Economic Rights Action
Supp. SCR Supplementary Supreme Court Reports (India)
TAC Treatments Action Campaign
UNDHR Universal Declaration of Human Rights
UN Doc. United Nations Document
WRN Weekly Reports of Nigeria
WTO World Trade Organization
Yale Hum. Rts. Dev. L.J Yale Human Rights and Development Law Journal
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ABSTRACT
The Universal Declaration of Human Rights (UDHR), 1948 provides for, and accords equal recognition to, two sets of human rights: the civil and political rights as well as the economic, social and cultural (ESC) rights. The provisions of this Declaration were later transformed into legally binding obligations in two separate covenants (International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, ICESCR). These covenants, together with the UDHR, constitute the International Bill of Rights. Both the United Nations (UN) and the individual member states take the official position that these two sets of rights are complementary, universal, indivisible, inter-dependent and inter-related. However, experience shows that, in practice, most member states of the UN and signatories to the ICESCR treat ESC rights as inferior step-cousins of their civil and political counterparts. Reflecting this bias, scholars and human rights advocates concentrate efforts on issues concerning civil and political rights to the disregard of ESC rights. This attitude invariably affects the degree of seriousness given to the protection and enforcement of ESC rights in various jurisdictions of the world. Using the doctrinal approach and adopting the analytical, expository and comparative methods, this dissertation, therefore, sets out to do a comparative appraisal of the protection and enforcement of ESC rights under the law in three selected jurisdictions (South Africa, India and Nigeria). The choice of the research population is for some considered reasons: the three jurisdictions share a common colonial heritage and the common law tradition; socio-economically speaking, they used to belong to the so-called Third World or developing countries until recently when India and South Africa moved higher in the development ladder; while Nigeria and India are state parties, South Africa is a signatory to the ICESCR; covering the two continents of Africa and Asia gives the research a fairly global outlook. Constitutional protection, statutory institutional mechanisms, periodic reports of compliance with the provisions of the ICESCR, and judicial attitude are the common indices used in comparatively assessing the jurisdictions chosen for this research. This seven-chapter dissertation also traces the origins and historical evolution of human rights, in general, and ESC rights, in particular and analyses the general challenges to the protection and enforcement of ESC rights. Comparatively speaking, the dissertation posits that while South Africa provides the most constitutionally conducive environment for the protection and enforcement of ESC rights, Nigeria enjoys the best autonomy provisions in the governing Act of her national human rights institution and India displays the most courageous and most activist judicial attitude in the protection and enforcement of these rights. Debunking the general traditional reasons for the non-justiciability of ESC rights, the dissertation argues, against the popular belief, that ESC rights may, in fact, be justiciable in Nigeria. Some recommendations are made and it is posited that since each jurisdiction appears to excel in one area or the other, each has a lesson to teach, and learn from, the others.
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CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background of the Study
Once upon a time in the history of mankind, a growing cloud of insecurity and uncertainty hung
ominously over an already ruthlessly ravished world. That was a sad reminder of the horror and
atrocities committed during two previous senseless wars1. It was also a prophetic warning that
unless man changed his attitude towards his fellow man, mankind was surely and steadily
moving towards an eventual self-propelled extinction. These combined circumstances of fear,
apprehension, mutual distrust, and uncertainty stimulated the quest for a new world order
predicated on universal respect for human dignity. This quest led to the birth of the United
Nations (UN) in 1945,2 which ushered in a new era in the promotion and protection of human
rights. Determined to forestall any future repeat of the bestiality of the past, the UN, through its
Economic and Social Council, established the UN Commission on Human Rights3, charged with
submitting reports and proposal on an international bill of rights. After a long and heated debate
over the nature of the proposed bill,4 the commission in 1948 adopted a draft Declaration which,
in turn, was adopted by the UN General Assembly as the Universal Declaration of Human
Rights (UDHR).5 It contained both civil and political rights and economic, social and cultural
(ESC) rights.
1 The First World War (28 July, 1914-11 November,1918) and the Second World War (1 September, 1939-2 September, 1945). 2 The preamble to, as well as Art. 1 of , the United Nations Charter reveals the organization’s commitment to the promotion of respect for human rights and fundamental freedoms and the dignity and worth of the human person. 3 Made up of 18 representatives of different countries, with Eleanor Roosevelt, wife of the then President of America as the chair person. This Commission has been dissolved and the Human Rights Council, established by GA resolution 60/251 of 15 March, 2006, is now charged with addressing human rights violations. 4 While some representatives urged that the draft bill of rights should take the form of a declaration, that is a recommendation that would merely exert moral and political influence on member states rather than a legally binding instrument, others urged for a draft convention, containing a bill of rights that would be adopted by the General Assembly and submitted to members for ratification. 5 On 10 Dec., 1948, with 48 states voting in favour, and 8 abstaining: Saudi Arabia, South Africa and Soviet Union with 4 East European states and one Soviet republic whose votes it controlled.
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It was also intended that the Commission on Human Rights would work out the issues relating
to the development and enforceability of these rights and come up with a document in the form
of a binding covenant to which states would formally commit and, therefore, be bound.
However, as a result of ideological differences and the effect of the Cold War during the
drafting of the detailed Convention, member states were divided, along the Western Bloc and
the Eastern Bloc lines, over what categories of rights should be included in the Convention. The
Western bloc delegations argued for two separate covenants. Their reason was that the
legislative as well as implementation measures required for protecting, promoting and realizing
ESC rights were entirely different from those required for civil and political rights. The
inclusion of ESC rights, it was further argued, would, therefore, produce an instrument that
could not essentially be put into effect. The delegations from countries that constituted the
Eastern Bloc, on the other hand, argued for the preservation of the balanced conception of
human rights as stated in the UDHR, arguing that the indivisibility of ESC rights and civil and
political rights, as provided in the UDHR, must be maintained. 6 Between 1949 and 1951, the
Commission on Human Rights was actually working on a single draft covenant to contain both
of the categories of rights. In 1951, however, the UN General Assembly, under pressure from
the West-dominated Commission, agreed to draft two separate covenants7. This culminated in
the adoption, by the General Assembly in 1966 of two covenants8 which, in combination with
the Universal Declaration of Human Rights (UDHR) constitute the International Bill of Rights9.
The General Assembly of the UN, echoing the views already expressed in the UDHR, stressed
Articles 22- 27 of the UDHR deal with ESC rights. 6 See Preparation of Two Draft International Covenants on Human Rights, GA Resolution 543 (VI) 5 February, 1952 . 7 See Annotations on the Text of the Draft International Convention on Human Rights, UN Doc. A/2929 (1955) p. 7. 8 The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). 9 See Wikipedia, the Free Encyclopedia “International Covenant on Economic, Social and Cultural Rights” Available at http://en.wikipedia.org/wiki/International-Covenant- on-Economic, Social- and- Cultural -Rights. Accessed on 30/03/2011.
xxxix
that, though separate, the rights espoused in both Covenants should be regarded as
interconnected and interdependent.
From the foregoing, it can, therefore, be seen that the UDHR recognises two sets of human
rights: civil and political rights, as well as ESC rights. The official position of the UN and all the
member countries of this global body is that these two sets of rights are ‘universal, indivisible
and interdependent and inter related’10. Experience and observation of the common practice by
member countries and signatories to the Declaration and other resolutions tend to show,
however, that beneath this formal consensus is a deep and enduring disagreement over the
proper status of ESC rights. This has polarised the human rights world. At one extreme are
those who hold the view that ESC rights are not even qualified to be described as rights at all.
Most countries of the world therefore see ESC rights as mere benevolent privileges which can
only be granted to the citizens at the will and convenience of the state. At the other extreme are
those who vigorously canvass the opinion that these rights are, in fact, superior to civil and
political rights11.
It is against the foregoing backdrop that this research is conceived, to do a critical and
comparative appraisal of the protection and enforcement of ESC rights under the law in three
selected jurisdictions, spanning two of the five continents of the world. The choice of the
research population: South Africa, India and Nigeria is for very well-considered histo-legal,
geographical, and socio-economic reasons.
1.2 Statement of the Problem
As pointed out earlier, the two sets of rights recognised under the Universal Declaration of
Human Rights are officially accorded equal status by the Declaration and the international 10 See para. 5 of the Vienna Declaration and Programme of Action,1993. 11. H.J. Steiner and Phillip Alston, International Human Rights in Context: Law, Politics, Morals (Oxford: Clarendon Press, 1996) p. 256.
xl
community as they are regarded as universal, indivisible and interdependent and interrelated. It
is common knowledge, however, that, in spite of the apparent claim of equality between these
two groups of rights, many governments today still see ESC rights as the inferior and less
important of the two sets of rights. Yet, many states claim that they recognize and are committed
to the enforcement of ESC rights, even as diseases, malnutrition, impoverishment,
environmental degradation, illiteracy, homelessness and generally pitiable socio-economic
conditions stare one in the face everywhere in such states.
In the face of the foregoing paradoxical contradictions and given the overriding importance of
ESC rights as the cornerstone for the overall development of man and society, there arises the
need to inquire into the performance of states in recognising, protecting and enforcing these
rights. It also becomes necessary to compare the performances of some states with those of
some others with a view to identifying their respective strengths and weaknesses and suggesting
ways of improving the situations. Some researches have, no doubt, been conducted by erudite
scholars on the recognition, protection and enforcement of ESC rights, coming up with findings
and conclusions on the general attitude of the global international community towards these
rights. This dissertation intends to use specific uniform indices in doing a critical and
comparative assessment of the performances of the three chosen subjects, South Africa, India
and Nigeria, in the recognition, protection and enforcement of ESC rights.
1.3 Research Questions.
This dissertation shall attempt to provide answers to the following questions:
1. To what extent are ESC rights constitutionally protected in each of the three jurisdictions
studied in this dissertation and what is the status of these rights in each of the said
jurisdictions?
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2. With respect to the provision of good and conducive constitutional climate for the protection
and enforcement of the ESC rights, what is the comparative rating of each of the
jurisdictions being evaluated in this study?
3. On a comparative basis, which of the jurisdictions has the most effective statutory
institutional outfits for the protection and enforcement of ESC rights and what is the
comparative performance of these outfits at the time of this study?
4. To what extent does each of the three jurisdictions fulfill its treaty obligation to submit
periodic reports of its compliance with the provisions of the ICESCR, and what conclusions
can be drawn from the satisfaction or otherwise of this obligation as well as from the
concluding observations of the UN Committee on Economic, Social and Cultural Rights on
those reports?
5. What is the attitude of the judiciary in each of the jurisdictions towards the protection and
enforcement of ESC rights?
6. Comparatively speaking, how does each of the jurisdictions studied in this dissertation fair
with respect to the judicial protection and enforcement of ESC rights?
7. Generally, what challenges impede the protection and enforcement of ESC rights?
1.4 Literature Review
A number of authors and human rights advocates have written on various aspects of the
recognition, protection and enforcement of ESC rights. In this section of the dissertation, it is
intended to review the views and opinions expressed by these learned authors in their various
works.
Decrying the inferior treatment of ESC rights by states, H.J Steiner and Phillip Alston12note that
the support which states give to ESC rights at the international level is merely rhetorical, as most
states fail to consistently follow it up with practical and sustained domestic programes of
12 Op. cit., p. 256.
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implementation. Abdulahi A. An-Na’im, whose article13 is basically on the justiciability of ESC
rights, traces the genesis of this poor attitude to the fallacious classification of human rights into
two categories. While Mario Gomez14 assesses the role of national human rights commissions in
the protection and enforcement of ESC rights, Shedrack Agbakwa15 sees the effective protection
and enforcement of these rights as sine qua non to continued peace and human development.
Agbakwa, however, notes that in practice, states have paid less attention to the enforcement and
implementation of ESC rights than other rights. Yash Ghai and Jill Cottrell in their jointly
edited work16 parade an array of erudite scholarly articles written by celebrated ESC rights
advocates each of whom, however, discusses only the propriety or otherwise of making ESC
rights justiciable in each of the jurisdictions they respectively studied. The work is, therefore, an
excursion exclusively into the justiciability debate and has little space for comparing different
jurisdictions and, even less, for discussing other means of enforcement. Varun Gauri’s and
Daniel Brinks’s jointly-edited work17 critically appraises the judicial enforcement of social and
economic rights in five selected countries. This brilliant work does a very incisive critical and
detailed analysis of court enforcement of these rights in Brazil, India, Indonesia, Nigeria and
South Africa, leaving the reader with the conclusion that whether courts expand or limit the
protection of social and economic rights will depend on a number of social, legal and political
factors. In line with its title, the scope of the work does not, however, allow for a consideration
of other means of protection and enforcement of ESC rights than through the courts. C. C.
Nweze18 brilliantly traces the historical evolution and development of ESC rights in the
13 ‘‘To Affirm the Full Human Rights Standing of Economic, Social and Cultural Rights” in Yash Ghai and Jill Cottrell(eds.), Economic, Social and Cultural Rights in Practice- The Role of Judges in Implementing Economic, Social and Cultural Rights( London: Interrights, 2004) p.12. 14 “Social Economic Rights and Human Rights Commissions” Hum. Rts. Q. Vol. 17, No.1 (Feb. 1995) pp. 155-169. Also available at http://muse.jhu.edu. Accessed on 13/04/2010. 15 “Reclaiming Humanity: Economic, Social and Cultural Rights as the Cornerstone of African Human Rights” (2002) Yale Hum. Rights and Development L.J, Vol.5, p.154. 16 Op. cit. pp.1-142. 17 Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge University Press, 2008) pp.1-284. 18 “Evolution of the Concept of Socio-economic Rights Jurisprudence: International and National
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jurisprudence of international human rights while Christopher Mbazira19 and Chidi Odinkalu20
evaluate the extent to which states parties fulfill their treaty obligation to domestically enforce
the ESC rights contained in the African Charter on Human and Peoples’ Rights. While Mbazira
is of the view that so far, it has been a bag of mixed losses and gains, pointing out that the
greatest problem confronting the realization of the ESC rights in the African Charter is the lack
of domestic enforcement of judicial and quasi judicial decisions on the rights, Odinkalu notes,
among other things, that African leaders blame their inability to effectively implement these
rights on unavailability of resources. Shivani Verma21is of the view that while it is argued that
ESC rights are not justiciable, there exists sufficient case law to demonstrate otherwise and to
illustrate the potential for future legal action. The African Commission on Human and Peoples
Rights22 notes that despite the consensus on the indivisibility of human rights, ESC rights
remain marginalized in their implementation and blames this state of affairs on the resistance of
state parties to recognize these rights. In a paper he presented at the Commonwealth Law
Conference held in London in September, 2005, Iain Byrne23 notes, sadly, that ESC rights, in
general, and the right to health, in particular, are not domestically codified. He, however, opines
that the non-codification of the right to health in domestic law is not necessarily a bar to both the
consideration and enforcement by courts of healthcare and treatment issues through innovative
approaches taken by jurists.
Perspectives” The Nigerian Bar Journal, Vol. 1. No. 1, 2001, pp..79-95 19 “Enforcing the Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights: Twenty Years of Redundancy, Progression and Significant Strides” (2006) AHRLJ, Vol. 6, No. 2, pp. 341-365. 20 “Analysis of Paralysis or Paralysis by Analysis?: Implementing Economic, Social and Cultural Rights under the African Charter on Human and Peoples’ Rights”, (2001) vol.1 Hum. Rts. Q., pp.327-369. 21 ‘‘Justiciability of Economic, Social and Cultural Rights: Relevant Case Law’’ A paper presented at a Review Meeting of the International Council on Human Rights Policy, held in Geneva on 15 March, 2005. p.2. 22See The African Commission on Human and Peoples’ Rights, ‘‘Pretoria Declaration on Economic, Social and Cultural Rights in Africa’’. Available at www.achpr.org/instruments/pretoria-ddeclaration. Accessed on 21/12/2013. 23 ‘‘Making the Right to Health a Reality: Legal Strategies for Effective Implementation’’, a paper presented at the Commonwealth Law Conference, London, September 2005. Available at http://www.interights.org/ddoc/health%20paper.doc. Accessed 20/12/2013.
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Acknowledging that judicial enforcement of ESC rights in Africa has been fraught, to a large
extent, with a web of complex issues, Bonolo Ramadi Dinokopila24 observes that South Africa
stands out as the most progressive country in Africa as regards the judicial enforcement of these
rights and gives the credit for this to their egalitarian and progressive constitution. Marius
Pieterse’s article25 boldly debunks most of the traditional reasons for the non-justiciability of
ESC rights. However, the article is concerned only with the issue of justiciability of ESC rights
and covers only South Africa. While Christian Courtis26, D. Bilchitz27, Aarthi Belani28, C. Scott
and P. Alston29as well as Geof Budlender30 concern themselves mainly with the giant strides
made by South African courts in judicially enforcing ESC rights, D. Brand and C. Heyns31, J.C.
Mubangizi32 and G. Devenish33 attribute South Africa,s judicial success to the 1996 South
African Constitution, which they describe as one of the most ESC rights–friendly constitutions
in the world. It is submitted that no view can be more correct than that. Of all the scholars who
expressed views on the experience of South Africa on the subject of this research, J.C.
24 “The Judicial Enforcement of Socio-Economic Rights in Botswana and the Case of Basarwa in the Central Kalahari Game Reserve(CKGR)” A paper presented at the ANCL-RADC Annual Conference on the Internationalisation of Constitutional Law, held in Rabat, Morocco on 20/01/2011. Available on www.ancl-radc.org.za/sites/default/...Accessed on 8/7 /2011. 25 “Coming to Terms with Judicial Enforcement of Socio-Economic Rights in South Africa” (2004) 20 SAJHR, pp. 390 – 399. 26 “The Role of Judges in the Protection of Economic, Social and Cultural Rights” -A paper presented at the South African Chief Justices Forum, Annual Meeting held at Kasane, Botswana, 7 to 8 August, 2009, p. 33. 27 “Towards a Reasonable Approach to the Minimum Core: Laying the Foundation for Future Socio- Economic Rights Jurisprudence” (2003) 19 SAJHR, pp.1-26. 28 Aarthi Belani, “The South African Constitutional Court’s Decision in TAC: A “Reasonable” Choice? A Center for Human Rights and Global Justice Working Paper – No. 7, 2004, p. 12. 29 “Adjudicating Constitutional Priorities in a Transitional Context: A Comment on Soobramoney’s Legacy and Grootbroom’s Promise,” (2006) 16, SAJHR, p. 260. 30“ Justiciability of Socio-Economic Rights: Some South African Experiences” in Yash Ghai and Jill Cottrell (eds.) pp.33-41. 31 D. Brand and C. Heyns (eds.), Socio-Economic Rights in South Africa (Pretoria: Pretoria University Law Press, 2005) pp. 3-4. 32 J.C. Mubangizi, “Prospects and Challenges in the Protection and Enforcement of Socio-Economic Rights: Lessons from the South African Experience” – A paper presented at the VII World Congress of the International Association of Constitutional Law held in Athens, 11 – 15 June, 2007, p. 1; J.C. Mubangizi, The Protection of Human Rights in South Africa: A Legal and Political Guide (Cape Town: Juta & Co, 2004) p. 4. 33 G. Devenish, A Commentary on the South African Bill of Rights (London: Butterworth, 1999) p. 358.
xlv
Mubangizi stands out as one that truly compared it with the performances of some African
jurisdictions, excluding Nigeria. However, while Mubangizi’s “The Constitutional Protection of
Socio-Economic Rights in Selected African Countries: A Comparative Evaluation’’34 is
principally a comparison of the constitutional provisions on ESC rights in South Africa, Ghana,
Namibia and Uganda, his other work35is a very in-depth analysis of the attitude of the South
African judiciary in the protection and enforcement of these rights, presenting that jurisdiction
as a beacon of reference for other African countries. Neither India nor Nigeria is, however,
covered by these two incisive scholarly works. This dissertation intends to do a comprehensive
evaluation of the South African experience in four distinct areas.
With respect to India, Justice S. Muralidhar concentrates on some of the factors responsible for
the enviable performance of the Indian judiciary in enforcing socio-economic rights36. This
eminent jurist, however, fails to provide answers to some of the problems that also arise from
the application of the identified factors. Attacking the constitutionally-entrenched dichotomy
between the civil and political rights and ESC rights, D.J. Ravindran 37questions the validity of
the view that the former are human rights while the latter are mere aspirations. Manoj Kumar
Sinha’s article38 extols, in very superlative terms, the roles of the National Human Rights
Commission of India in protecting and enforcing ESC rights by being proactive in its approach.
This view, however, appears to have disregarded the obvious handicap which the National
Human Rights Commission of India shares with those of Nigeria and South Africa, viz the
absence or near-absence of financial, administrative and operational autonomy. It is for this
34 2 Afr. J. Legal Stud. 1(2006)1-19. 35 J.C. Mubangizi, “Prospects and Challenges in the Protection and Enforcement of Socio-Economic Rights: Lessons from the South African Experience”, loc. cit., p.1. 36 “The Expectations and Challenges of Judicial Enforcement of Social Rights,” available at http://www.delhicourts.nic.in/ejournals/social_rights_jurisprudence.pdf. Accessed on 21/12/2011. 37 D. J. Ravindran, Human Rights Praxis: A Resource Book for Study, Action and Reflection (Bangkok: Asian Forum for Human Rights and Development, 1998) p. 124. 38 “The Role of the National Human Rights Commission of India in the Protection of Human Rights”. Available at www.rwi.lu.se/pdf/seminar/manoj05.pdf. Accessed on 15/05/2010.
xlvi
reason that Vijayastini Sripati thinks that the commission is shackled39 and the Asia Pacific
Human Rights Network urges the Commission to shake off the shackles, stand up and speak
out.40 While P.S. Pathak41 embarks on an exposition of the development of Public Interest
Litigation in India, Justice S. Muralidha, in another article, again writes glowingly about the
Indian experience in the judicial protection and enforcement of ESC rights.
With respect to Nigeria, an erudite professor, Muhammad Tawfiq Ladan42 contends that the
1999 Constitution of Nigeria does not make any specific provision for ESC rights as human
rights. According to this world-acclaimed human rights scholar, even though Chapter Two of
the 1999 Constitution of Nigeria provides the nearest articulation of ESC rights in Nigeria, the
ideals of ESC rights embodied in the said chapter are couched not as rights but as duties of state.
The learned professor, however, notes that although the 1999 Constitution does not contain an
express provision on the right to work, sections 16 and 17, read together, allude to the existence
of such a right.43 He further states that a community reading of sections 17, 33, and 35 of the
Constitution alludes to the right to health which is not expressly provided in the Constitution.
Writing on housing right in Nigeria, Akintunde Otubu also expresses the opinion that the
provisions of Chapter Two of the 1999 Constitution of Nigeria merely aggregate the feelings,
aspirations and expectations of the citizens and affords a measure against which government
actions can be tested.44 Stanley Ibe 45 explores the possibilities as well as obstacles to the
39 See Vijayastini Sripati, “India National Human Rights Commission: A Shackled Commission?” Boston University International Law Journal, Vol. 18 No. 1, 2000, p. 32. 40 See generally, Asia Pacific Human Rights Network, “National Human Rights Commission of India: Time to Stand Up and Speak Out” available at http://www.asiapacific forum.net/ about/annualmeetings/8yh_nepal_2004/downloads/ngostatements/ngo_india.pc. 41 “Public Interest Litigation in India” in Venkat Iyer (ed.) Democracy, Human Rights and the Rule of Law: Essays in Honour of Nani Palkhivala (New Delhi: Butterworths India, 2000) p. 123. 42 ‘‘ Introduction to National and International Frameworks on Human Rights’’, lecture material for the course ‘PSD 127’, Abdusalami Abubakar Institute for Peace and Sustainable Development, Niger State College of Education, Minna, held November 2-7, 2009. p.3. 43 Ibid. p.4. 44 See Akintunde Otubu, ‘‘Fundamental Right to Property and Right to Housing in Nigeria: A Discourse’’ Available atwww.academia.edu/...Fundamental-Right-to-Property-and-Right-to-Housing-in-Nigeria. Accessed 23/12/2013. 45 “Implementing Economic, Social and Cultural Rights in Nigeria: Challenges and Opportunities” (2010) 10 AHRLJ, pp.198-211; “Beyond Justiciabilty: Realising the Promise of Socio-Economic
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protection and enforcement of ESC rights in Nigeria. Even though these articles draw several
examples from India and South Africa, they basically deal with the Nigerian experience. For a
clearer grasp of the situation in Nigeria, there is the need to look outside and make a more
comprehensive comparison of notes with other jurisdictions. While Abiola Ojo46 gives a
historical perspective to the journey of ESC rights into the Nigerian constitution, Anthony
Anegbe Asemhokai47 makes a vigorous case for the justicialisation of the rights contained in
Chapter Two of Nigeria’s 1999 Constitution(as amended). Ojo’s work is, however, on the effect
of military rule on constitutional development and human rights in Nigeria.
B.O. Okere48 critically analyses the Fundamental Objectives provisions of the 1979 Constitution
of Nigeria49 and draws cross-jurisdictional instances from France and India, especially the
aspect of judicial attitude to the enforcement of the ESC rights. One of the many novel ideas
enunciated by this erudite scholar, to which this dissertation respectfully aligns itself, is the
creation of a special court to entertain human rights and other constitutional matters. This
dissertation, however, thinks differently from him on the composition and jurisdiction of the
court. While O.A Ipaye50sees the protection and enforcement of ESC rights as necessary steps
towards quick economic recovery in Nigeria, Avinash Govindjee and Elijah Adewale Taiwo
analyse the jurisprudence of ESC rights in South Africa and India and come up with the
Rights in Nigeria” (2007) 7 AHRLJ, pp.233-248. 46 Constitutional Law and Military Rule in Nigeria (Lagos: Evans Brothers (Nig.) Ltd., 1987) p.246. 47 “Socio-Economic Rights: The Need for Justiciability” Available at http://dspace.unijos. edu.ng.bitstream/1048/278/143-152.pdf. Accessed on 22/5/2011.
48 “Fundamental Objectives and Directive Principles of State Policy under the Nigerian Constitution” (1983) 32 International Law Quarterly, pp.214-229. 49 Which provisions are the same as those in the 1999 Constitution of Nigeria ( as amended). 50 ‘‘Economic and Social Rights as a Catalyst for Economic Recovery in Nigeria’’ in I.A Ayua and D.A. Guobadia (eds.) Political Reform and Economic Recovery in Nigeria (Lagos: Nigerian Institute of Advanced Legal Studies, 2001)pp.77-101.
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proposition that Nigeria has a lot to learn from those two jurisdictions in the area of justiciability
and enforcement of these rights.51
As stated earlier on, quite a number of the commentators on this subject either focus on only one
aspect of the subject in several jurisdictions or several aspects in one jurisdiction, without a
comprehensive cross-jurisdictional comparative evaluation of the various aspects. This
dissertation proposes to bridge that gap with respect to the three jurisdictions chosen for this
research: South Africa, India and Nigeria.
1.5 Objectives of the Study
This dissertation generally aims at doing a comparative assessment of the respective
performances of the three selected jurisdictions in the protection and enforcement of ESC rights
under the law. Specifically, the research sets out to: (i) determine the extent to which ESC rights are
constitutionally protected in each of the three jurisdictions, (ii)determine the status of these rights in the
said jurisdictions, (iii) compare the selected jurisdictions with respect to the provision of good and
conducive constitutional climate for the protection and enforcement of these rights, (iv) find out, through
a comparative evaluation of their performances, which of the jurisdictions has the most effective
institutional outfits for the protection and enforcement of ESC rights, (v) establish the extent to which
each of the jurisdictions fulfills its treaty obligation to submit periodic reports of its compliance with the
provisions of the ICESCR, and (vi)carry out a comparative assessment of the attitude of the judiciary in
each of the jurisdictions towards the protection and enforcement of ESC rights.
This appraisal will reveal the respective areas of relative strengths and weaknesses of each
jurisdiction in comparison with the others and properly place each of them in its deserved
position on the performance hierarchy under each assessment index. It also seeks to show that
each of the jurisdictions studied has some lessons to teach the others. It, therefore, hopes to
51 See Avinash Govindjee and Elijah Adewale Taiwo, ‘‘Justiciability and Enforceability of the Fundamental Objectives and Directive Principles in Nigeria: Lessons from South Africa and India’’ Nigerian Bar Journal, Vol.7 No. 1, August 2011.
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present an opportunity for each to learn from the experiences of the others. Generally speaking,
the dissertation debunks the long-held assumptions about how difficult, and even impossible, it
is to enforce ESC rights, administratively and judicially, holding that the devil is not really as
black as painted.
1.6 Methodology
This dissertation is eclectic in its methodology, employing the comparative, doctrinal,
expository and analytical approaches. The state of affairs regarding the subject matter in each
jurisdiction is comparatively evaluated against the state of affairs in each of the other
jurisdictions being studied, using the following four common indices as the bases for the
comparison: the level of constitutional protection enjoyed by ESC rights; the use of other
statutory institutional mechanisms(such as the national human rights commissions) by the states;
fulfillment of the treaty obligation to submit periodic reports of compliance with the provisions
of the ICESCR to the UN Committee on Economic, Social and Cultural Rights by each
jurisdiction; and judicial attitude towards the protection and enforcement of these rights. In
doing this, heavy reliance was placed on secondary sources. This involved a critical analysis of
decided cases and statutory provisions on the subject matter in the various jurisdictions. Views
and opinions expressed by learned authors in textbooks, journals, newspapers, seminar papers as
well as the internet concerning the respective performances of the research population on the
subject of the research were also critically analysed and used.
1.7 Scope of the Study
The study is a comparative evaluation of the protection and enforcement of ESC rights under the
law in the three selected jurisdictions, namely, South Africa, India, and Nigeria. The major laws
used in this appraisal are the respective constitutions of each of the three jurisdictions, the
l
ICESCR to which the subjects are all signatories, and the African Charter (in respect of Nigeria
and South Africa). The comparative performances of the various jurisdictions are assessed,
using the four parameters stated above. The performance of each jurisdiction under each
parameter is critically analysed and compared with those of the others, and a performance
judgement is passed, based on the findings made. Although this study is strictly on the three
jurisdictions mentioned above, a few references are made to the state of affairs in some other
jurisdictions not directly being studied in this dissertation. Such references are, however, for
illustration, clarification and explanation purposes only.
The first of this seven-chapter dissertation deals with the general introduction of the study and
some preliminary issues while the second discusses the origins of the concept of human rights as
well as the history and evolution of ESC rights in human rights jurisprudence. Chapter Three
looks, generally, at the challenges to the protection and enforcement of ESC rights while the
successive three chapters, respectively, present the respective experience of each of the
jurisdictions being studied. Each of the said three chapters also simultaneously compares the
performance of the affected jurisdiction with those of the other jurisdictions. Chapter Seven
presents a summary of the findings, based on which recommendations are made while, with a
concluding section, the dissertation is rounded off.
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CHAPTER TWO
THE ORIGINS OF THE CONCEPT OF HUMAN RIGHTS AND THE EVOLUTION OF
ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN HUMAN RIGHTS
JURISPRUDENCE
2.1 Introduction
In this chapter, it is intended to present the various views on the origins of the concept of human
rights as well as the evolution of the concept of ESC rights in human rights jurisprudence. This
is to provide, from the outset, a clear understanding and theoretical bases for the jurisprudence
of human rights, in general, and ESC rights in particular. The chapter is divided into two
sections. The first section treats the origins of the concept of human rights and approaches it
from the philosophical, religious and Afro-cultural perspectives. The second section traces the
evolution of ESC rights in human rights jurisprudence.
2.2 The Origins of the Concept of Human Rights
Here, the philosophical origins, religious foundations as well as Afro-cultural notions of the
concept of human rights shall be examined.
2.2.1 Philosophical Origins of the Concept
When Maurice Cranston52 describes human rights as a “twentieth century name for what has
been traditionally known as ‘natural rights’ or, in a more exhilarating phrase, ‘rights of man”, he
merely, like many other learned authors,53 locates the philosophical ancestry of the concept of
human rights in the Natural Law school. According to Henry Campbell Black, natural rights are
those rights which grow out of the nature of man and depend upon his personality and are
52 What are Human Rights? (New York: Taplings Publishers, 1973) p .1. 53 See, for example, Karel Vasak (ed.) International Dimensions of Human Rights, (Paris: Pendone, 1981) cited in Osita Nnamani Ogbu, Human Rights Law and Practice in Nigeria: An Introduction (Enugu: CIDJAP Publishers, 1999) pp. 1-2.
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distinguished from those rights which are created by positive laws54 enacted by a duly
constituted government to create an orderly civilized society55. The proponents of natural rights
are natural law philosophers. The expression ‘natural law” or jus naturale, was largely used in
the philosophical speculations of early Roman jurists and was intended to denote a system of
rules and principles for the guidance of human conduct which, independently of enacted law, or
of the system peculiar to any one people, might be discovered by the rational intelligence of
man. This system of rules and principles for the guidance of human conduct would be found to
grow out of, and be in conformity with, the nature of man. The word ‘nature’ here refers to the
whole mental, moral and political constitution of man, his entire make up.56
A number of conclusions can be arrived at from the foregoing postulations. First, it would be
concluded that every human being everywhere is inhered with these rules and principles for the
guidance of his conduct. Second, it would also be deduced that every human being everywhere
who applies his rational intelligence will discover these rules and principles. It is a known and
incontrovertible fact that man57 is endowed with rational intelligence and the ability to apply it.
Third, one would further conclude that the inherence in man of these rules and principles and his
endowment with the capacity to discover them do not respond to the variables of race, culture,
sex, geographical location, socio-economic or political system. Fourth, and finally, these rules
and principles grow out of and conform to the nature of man as man.
According to Lloyd,58 natural law is predicated on the assertion that there are objective moral
principles which depend upon the nature of the universe and which can be discovered by reason.
The nature of the universe includes the nature of man. What this means, therefore, is that the
theory of natural law is based on the reasoning that the rule of human conduct is a deduction
54 That is, man-made, and often written, laws . 55 Henry Campbell Black, Black’s Law Dictionary (Minnesota: West Publishing Co., 1990) p. 1027. 56 Ibid. 57 Meaning all human beings. 58 D. Lloyd et al, Introduction to Jurisprudence (London: ELBS, 1998) p. 229.
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from the nature of man as it reveals itself in reason and independent of any man-made
enactment59.
It follows from this assumption that a law of nature exists and that all things, including man,
ought to behave in conformity with the tenets and principles of the said law of nature. It follows
also that as human nature is identical in all men and does not vary, its precepts have universal
and immutable validity, notwithstanding the diversity of individual conditions, historical and
geographical environments, civilizations and cultures.60
As stated earlier on, natural right is the antecedent name for what is today known as human
right. One of the earliest recorded traces of what resembled belief in natural rights and natural
law was among the ancient Greeks61. Historically speaking, even though the idea of natural
rights came up later among the Greeks, Greek citizens had been enjoying the inherent rights
even before the formulation of the theory of natural law by their ancient philosophers,
particularly the stoics,62 after the breakdown of the city states. The stoics believed that natural
law was superior and anterior to any positive law and that every human being, simply by virtue
of his being a human being, was entitled to the full enjoyment of the natural rights conferred by
natural law63. This school of philosophers, who, it has been asserted, made the most systematic
exposition of the concept of natural law, also believed in the equality of all men (as dictated by
the law of nature). They did not find any rational justification for drawing any distinction
among men. According to them, reason is the most important thing which unites all men and
makes them equal, having been given to them by one common creator. It stands to reason,
59 Ogbu, op.cit; pp. 3-1. 60 Ibid p. 4. 61 Ogbu op. cit., p.4. 62 These were members of Zeno’s ancient Greek School of Philosophy with the major philosophical postulation that happiness and virtue can only be attained through man’s unflinching submission to natural law and destiny. 63 G. Ezejiofor,, Protection of Human Rights under the Law (London: Butterworth, I964 ) p. 3.
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therefore, that since all men share the capacity to reason, all men are brothers and equal, the
difference between one man and another being merely a function of chance or convention.64
Through contact and other agents of civilization, Roman philosophers received and approved
this conception of natural rights, with the great Roman orator, Cicero, vigorously asserting the
universality, imprescriptibility and inalienability of natural rights. To him, it is not permissible
to attempt to repeal any part of this law, nor is it within the realm of possibility to abolish it
entirely. The theory of natural law and natural rights grew in popularity and acceptability during
the Roman Era, especially with the overwhelming influence of the ecclesiastical authorities, and
their Christian philosophers, like St. Augustine and Thomas Aquinas. These two were also on
the vanguard for the enthronement of natural law above positive law. The popularity and wide
acceptability of natural law suffered some setback during the Middle Ages with several calls
being made for a new approach towards sovereign power. Theories that justified absolute
monarchy, to the detriment of individual freedoms and human rights were propounded. This
setback did not, however, last long. The stage for the revitalization of natural rights was set by
the Reformation65 with its attendant quest for natural rights and the doctrine of social contract.
According to this new concept of social contract, the individuals undertook to form a
government that would enjoy their support and submission on condition that the protection of
the rights of these individuals was guaranteed. It was, however, in the hands of the Seventeenth
and Eighteenth Century philosophers that the natural law tradition and its concomitant
prominence translated themselves into political liberalism whose major preoccupation was the
theory of individualism.66 It was also the philosophers of this age that elaborated upon the
modern conception of natural law as meaning natural rights.67 The most prominent of these
64 For these views, see, generally, Ogbu, op. cit., p. 5. 65 A politico-religious movement of the 16th Century Europe that started as an attempt to reform the Roman Catholic Church and ended in the establishment of the Protestant Church. 66 Ogbu, op. cit., p.4. 67 I. G. Shivji, The Concept of Human Rights in Africa (London: CODESERIA Book Series, 1989) p. 16.
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philosophers were Thomas Hobbes, John Locke, Baron de Montesquieu, and Jean Jacques
Rousseau68. Generally, these philosophers postulated that all men are created equal, and are
endowed with certain inalienable rights to life, liberty and the pursuit of happiness.69 Their
works profoundly presented the philosophical and legal foundations of natural rights. Modern
conceptions of human rights also drew great inspiration, directly or indirectly, from those
writings.
These philosophical ideas and intellectual postulates of the 17th and 18th centuries, no doubt,
had a great influence on the Western Europe of the time and this accounted for their rise in
revolutionary agitations against the tyranny of absolution for the liberation of man and of the
oppressed people70. The philosophical ideas also served as an outline to the authors of the
fundamental legal documents of that age in drafting those monumental documents71. Thomas
Jefferson, who was an intellectual disciple of John Locke, betrayed the unavoidable and deep-
rooted influence of his philosophical hero when he, in a beautiful poetic reconstruction
expressed, in the American Declaration of Independence, the great ideas postulated by Locke
earlier in the 18th century and wrote in the preamble to that declaration thus:
We hold these truths to be self evident, that all men are created equal; that they are endowed by their Creator with some unalienable rights; that among these are life, liberty, and the pursuit of happiness72
68 See M.O.U. Gasiokwu, Human Rights: History, Ideology and Law,( Jos: Fabs Educational Books, 2003) pp. 28-30.
69 Eseni Azu Udu, “A Bi-juridical Comparison of Human Rights Protection in the Anglophone and Francophone West Africa — A Case Study of Nigeria and Senegal (An unpublished LL.M Dissertation submitted to the Faculty of Law, University of Nigeria, Enugu Campus, 2008) p. 10. 70 Such as the American Revolution of 1763 and Declaration of Independence in I776, the French Revolution and Declaration of the Rights of Man and of the Citizen of August 26, 1789. 71 Gasiokwu, op. cit., p.3l. Such documents include the Constitution of the United States of America as adopted in 1789 well as the 1791 United States of America Bi1l of Rights, the 1789 French Declaration of the Rights of Man and of the Citizen, and the 1791 Polish Constitution.
72 Steiner and Alston, op. cit., p. l68., Ogbu, op. cit., p.6., citing B.H. Weston, “Human Rights- Questions for Reflection and Discussion” in R.P. Claude (ed.) Human Rights in the World Community: Issues and Action ( Pennsylvania: Pennsylvania University Press, 1989) p.13.
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Curiously, however, in spite of the above pious declaration, the subsequent 1789 Constitution of
America did not contain fundamental rights provisions. The ideology in the preamble cited
above found its way into the constitution in 1791 as the Bill of Rights in the form of the First
Ten Amendments73
In spite of the great influence of the natural rights philosophy as exemplified above, critics74
note that because they were conceived in essentially absolutist terms,75 natural rights were found
increasingly to come into conflict with one another76. Apart from these internal conflicts, the
doctrine of natural rights came under severe attacks from other philosophers such as Edmund
Burk, John Stuart Mill, F. K. Von Savigny, Henry Maine, et cetera. In the face of all these
opposition and attacks, the doctrine of natural law waned in popularity and acceptance. With
the decline in the acceptance of the doctrine of natural law came a corresponding rise in the
popularity of state sovereignty and supremacy. This prepared a very veritable ground for the
growth of totalitarian regimes with draconian state-ordained laws under which massive
atrocities, injustices and all forms of bestiality were perpetrated by man against man77.
Fired by the desire to salvage humanity from the bestial atrocities of extreme totalitarianism,
particularly during the inter war years, man sought for a new world order where there would be
municipal peace and international co-existence. Natural law with its human face was redesired
and, subsequently, a revival of the natural law thinking was accomplished. It has been asserted
that the expression “human rights” made its debut entry into the public domain between 1942
and 1944 in the course of internal policy discussions in the United States of America on the
73 Wiki Source “Wikisource: Constitution of the United States of America. Available at http://en.wikisource.org/wiki/contitution of the United State. Accessed 20 February, 2010; Ogbu op. cit., p. 7. 74 Such as Burns Weston, cited in Steiner and Alston, op. cit., p.169. 75 Such as ‘inalienable’, ‘unalterable’, ‘eternal’. 76 Steiner and Alston, op. cit., p. 168 . 77 The World Wars and several other inter and intra-state wars were eloquent testimonies to the growing spate of man’s inhumanity to man.
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subject of the principles on which a contemplated post- world war organisation would be
based78. The term therefore came into everyday parlance only after the World War II and the
founding of the United Nations Organization in 1945. The term replaced the phrase “natural
right” which was the central preoccupation of the natural law philosophers and which held sway
in the 17th and 18 centuries, but which became unpopular partly because the concept of natural
law to which it was intimately linked had become a subject of great controversy and the latter
phrase, “the rights of man” was not universally understood to include the rights of woman79.
2.2.2 Religious Foundations of the Concept.
The concept of human right can also be ascribed a religious origin. Major religions of the
world80 have their various views and ideas corresponding to the concept of human rights. This
dissertation shall now examine some of the views and practices in some of these religions which
tend to suggest the existence of human rights.
2.2.2.1 Judaism.
Judaism or Hebrew religion is one of the earliest religious philosophies. It is the religion of the
Jews. The views and practices of this religion are elaborately recorded in the Old Testament part
of the Holy Bible which also chronicles the history and culture of the Jews as well as their
intercourse with Yahweh81. It has been remarked that one of the central essentials of Judaism is
immunity from powers.82 The Israelites learnt the value of immunity during their period of
enslavement in Egypt, and as a result, desired to have societies where God would be the sole
ruler and where the people were governed by His laws. They established theocracy, with its
main features as the direct rule of God and the independence of the individual.83 Judaism
78 Ibid. p. 12. 79 Steiner and Alston, op.cit., p.167. 80 Such as Judaism, Christianity, Islam, Hinduism, Confuscianism, and African traditional religion. 81 The Hebrew name for God, the Creator. 82 See Gasiokwu, op. cit., p. 11. 83 It can safely be asserted that the Jews developed a natural law of mankind which is the equivalence of modern day human rights.
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therefore posits freedom, independence and equality as the fulcrum on which the law rests.
Some portions of the Holy Bible can be used presently to demonstrate the prime position
accorded these concepts. While independence is the guarantee of the protection of the individual
from the abuse of power by the state, equality meant equality before the law, equal redress and
retribution.84 Love for one’s neighbour85 as well as the lack of duty to testify against oneself86
(which has found expression in many constitutions and court procedures today) are also ideas of
human rights postulated under Judaism. One can say therefore, that the concept of human rights
also found expression in the ancient religion of the Jews.
2.2.2.2 Christianity
The religio-cultural environment of a waning Jewish monotheism prepared a fertile ground for
the rise of Christianity. The tenets of Christianity are contained in the scriptural expositions in
the Holy Bible. Christians believe in the ultimacy of God and the primacy of his injunctions.
The ideas of human rights can also be profoundly identified in the teachings of Christianity. The
biblical account of the first trial ever recorded, that is the one that took place in the Garden of
Eden, established one of the cardinal pillars of natural justice87 which today has found
expression in most modern constitutions as the fundamental human right to fair hearing88. Also,
the ten commandments given by God to the Christian world through Moses and seen by all
Christians as both primal and ultimate is indeed one of the most ancient catalogues of
fundamental human rights and duties. Some writers, however, believe that Christianity does not
84 See the Holy Bible, Exodus Chapter 12 verse 49 and Leviticus Chapter 24 verses 17-23 both of which provide that the same law should govern the indigenes and the strangers alike. See also Exodus, Chapter 20 which provides for the ten commandments of God recognizing, among others, the individual’s right to life, as well as Deuteronomy, Chapter 19 verse 21 which recommends very severe punishment for any infraction on the individual’s right to life. 85 The Holy Bible, Leviticus 19:17-18. 86 This ancient Hebrew maxim which posits that a person cannot represent himself as evil has been captured and formulated in the Latin maxim nemo tenetur reipsum accusare. 87 Audi alteram partem 88 See, for example, sec. 36, Constitution of Nigeria, 1999. See also R. V. Chancellor, Masters and Scholars of the University of Cambridge (1716) 1 s-r 557 where Fortesque J gave a romantic re- enactment of that historic “trail”.
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profess ideas of human rights. One of such writers is Gasiokwu who remarks, “Contrary to
Judaism, there are no clear-cut legal ideals of human rights in the Christian doctrines, especially
in the New Testament’’89. With respect, this study does not share the above view. Apart from
the fact that Christian doctrines teach unflinching belief in the ultimacy of God and the primacy
of His laws, Christianity preaches freedom, equality, and love for one’s neighbours, as written in
the relevant portions of the Holy Bible90. Christians believe that all men, having been made in
the image and likeness of God91 are, by nature, free and equal. These doctrines, no doubt,
influenced the postulations of the early Christian philosophers like St. Augustine and St.
Thomas Aquinas. While St. Augustine asserted that no man was by nature a slave since the
grace of God abides in all men, St. Thomas Aquinas identified the law of nature with the law of
God and came to the conclusion that laws were therefore to be judged by the test, whether every
human law has just so much natural law, as it is derived from the law of nature and is founded
on reason. It can therefore be concluded that Christianity has its own ideas of human rights akin
to the concept of natural law.
2.2.2.3 Islam
Islam recognizes and enforces fundamental human rights. These rights are directly linked to the
Islamic faith and are believed to be divinely ordained. According to Azra Awan92, the
distinguishing feature of human rights in Islam is that they are the natural outcome of a broader
practice of faith, deeds and social behaviour that Muslims believe are divinely mandated and
they stem from two foundational principles: dignity and equality. Because of this, human rights
in Islam are seen as religious obligations which everyone must protect and restore whenever
89 Gasiokwu, op. cit., p. 12. 90 See for example, Luke chapter 10 verses 33-37. 91 See the Holy Bible, Genesis chapter 1 verses 26-27. 92 ‘‘Human Rightts in Islam’’ Available at www.whhyislam.org/islam/human-rights-in-islam/ Accessed on 20/12/2013.
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they are violated.93 Another erudite Islamic scholar and expert in Comparative Religion,
Muhammad Zafrullah Khan94 posits that the most striking feature of Islam is its universality and
the place it assigns to man as the centre of the universe. Islam therefore teaches and insists upon
the acceptance and comprehension of the Unity of the Creator which results in the unity and co-
ordination of creation and the unity and equality of man. According to him, the object of Islam
is to establish a balance and to bring about accord in the relationship of man to his Maker, to the
Universe and to his fellow men through beneficent adjustment95. Islam therefore preaches the
equality of all people in terms of human values and that all individuals are equal before the
Islamic Code of Law. The rights protected under Islam include the right to life96, respect for the
chastity of women97, right to a basic standard of life98, right to justice99, as well as equality of all
human beings100. In demonstration of its regard for fair hearing and fair trial, Islam provides that
no one may be arrested, exiled, punished or his freedom restricted without adequate legal
action.101 A distinguished human rights scholar has rightly observed that Islam, as a religion of
truth, peace and justice for all, urges state authorities to bring to justice all perpetrators of crimes
without fear or favour but in accordance with the process of law102. From the foregoing, it can
confidently be concluded that Islam, as a religion and a way of life, makes elaborate provision
for the effective protection and enforcement of human rights, not just for its adherents alone,
but for the whole of mankind.
93 See Gain Peace in Islam, ‘‘Human Rights in Islam’’ Available at www.gainpeace.com/Index.php?option=com-content&view=article&id=117-Accessed on 19/12/2013. 94 Islam and Human Rights, 5th edn. (Islamabad, United Kingdom: Islam International Publications Ltd, 1999) p. 28. Also available at www.alislam.org/library/books/Islam-HR.pdf. Accessed 18/12/2013. 95 See the Holy Quran 55:8-10. 96Ibid 5:32. 97 Ibid. 17:32. 98 Ibid. 51:19. 99 Ibid. 5:2, 5:8, 4:135. 100 Ibid. 49:13. 101 See generally, ‘‘Human Rights in Islam’’ Available at www.jamaat.org/new/library/moalana englishbooks/Typed books/ Human-rights-in-Islam.pdf. 102 See Muhammad Tawfiq Ladan, ‘‘Humman Rights, Security and Development’’, A paper presented at the 2nd NBA President Roundtable on Human Rights, organized by the Nigerian Bar Association to mark the World Human Rights Day, 2011 on December 9 2011 at Abuja.
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2.2.3 Afro-Cultural Notions
Some writers are of the view that prior to the advent of colonialism in Africa, laws, customs and
practices which were the equivalence of what today may be referred to as modern concept of
human rights existed and developed in traditional African societies.103 According to Gasiokwu,
these laws and customs developed in three predominant socio-economic formations, namely
primitive communalism, slave-owning societies and feudalism. M’Baye, according to
Gasiokwu, enumerates such rights, which he asserts existed in pre-colonial traditional Africa, to
include the right to life, freedoms of movement, expression, association and religion as well as
the rights to work and education104. On the other hand, however, Osita Eze in his work105 is very
critical of the views expressed by M’Baye even without denying the existence of such rights.
According to Gasiokwu, Eze, like some other writers106 based his attack on the existence, in pre-
colonial African societies, of institutions, superstitions and practices allegedly incompatible with
the notion of human rights and which, indeed, directly derogate from those rights, like slavery,
the “Osu” system, human sacrifice as well as the killing of twins. The view is respectfully
shared that pre-colonial African societies had notions of human rights. First, the sacrosanctity
accorded human life as a fundamental right of man is demonstrated in the severity of sanctions
for any unapproved derogation from that right. Second, the notion of the right to fair hearing
clearly manifests itself in the various methods of dispensing both civil and criminal justice in
traditional African societies whereby the contending parties were allowed to freely state their
cases. The Igbo107 aphorism, “Adighi egbu onye ekpeghi onu ya”108, goes to confirm the
103 Keba M’Baye, “Organization delimite Africane, Less Dimension Internationales de Droits de I’Homme, (Paris: UNESCO) pp. 650-654 cited in Gasiokwu, op. cit., p. 42. 104 Gasiokwu, op. cit., p. 42. 105 Human Rights in Africa (Lagos: Nigeria Institute of International Affairs, 1984), p. 4. 106 Such as Ogbu, op cit., p. 29. 107 Igbo is the language spoken by the people of South Eastern Nigeria. It is also the name of the ethnic group (one of the three major ethnic groups in Nigeria) that speaks that language.
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recognition and protection of the accused’s right to fair trial. Finally, it is humbly submitted that
the existence of derogations from certain rights does not necessarily presuppose the non-
existence of such rights. Certainly, the notion or concept of human rights is not alien to
traditional African societies.
2.3 Evolution of the Concept of Economic, Social and Cultural Rights in Human Rights
Jurisprudence
Before discussing the evolution of the concept of ESC rights, it is necessary to, first explain
ESC rights.
2.3.1 Economic, Social and Cultural Rights.
Economic, Social and Cultural (ESC) rights are those rights categorised in the theory of Three
Generations of rights as ‘Second Generation rights’ and by the Theory of Negative and Positive
Rights as ‘positive109 rights’. This category of rights is predicated on the belief that the
attainment of a certain level of social and economic living standard is a requisite condition for
the realization and enjoyment of the so-called negative (civil and political) rights.110 Rights in
this category, therefore, require government to provide the necessary living conditions without
which the enjoyment and realization of the civil and political rights will be a day dream.111 In
this category are those rights which touch on the basic needs of man and demand the ultimate
improvement on man’s living conditions, without which man’s life cannot truly be said to be
worth living. The basic needs of man which ESC rights address include food, shelter, water,
good health, and education.
108 Translated: A person who has not presented his case cannot be condemned. 109 http://en. Wikipedia.org/wiki/International-Covenant-on- Economic – Social – and – Cultural- Rights, accessed on 22/4/2010. 110 Ogbu, op. cit., p. 17. 111 See United Nations General Assembly Resolution 32/130 of 16 December 1977.
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According to Julius Nyerere, an unrepentant advocate of ESC rights, the freedom to vote and to
speak is meaningless to a poor subsistence farmer who scratches a bare living from the soil, his
children working at his side without schooling, medical care, or even good feeding.112 This view
was re-echoed with even greater pungency in the judgment of Justice Bhagwati of the Supreme
Court of India when he said.
To the large majority of people who are living in almost sub-human existence in conditions of abject poverty and for whom life is one long unbroken story of want and destitution, notions of individual freedom and liberation, though representing some of the most cherished values of a free society, would sound as empty words bandied about in the drawing rooms of the rich and the well-to-do---113
It has also been remarked that the right to privacy means nothing to a person who has no house
and can be preyed upon by wild beasts; right to life means little to a person who cannot afford
the cost of medical treatment during sickness and that the right to personal dignity is of no
significance to a person whose palace is under the bridge114.
2.3.2 Tracing the Evolution of the Concept of Economic, Social and Cultural Rights in
Human Rights Jurisprudence.
The historical origins of the concept of ESC rights and the entrance of this concept into the
international human rights discourse are diffuse. Opinions are diverse among scholars on this.
Steiner and Alston115 are of the view that the concept of ESC rights draws strength from the
injunctions reflected in various religious traditions to care for the needy and those who cannot
look after themselves. The 1earned authors go on to illustrate this claim with the Papal
encyclicals116 of the Catholic Church, which, according to them, have long promoted the
112 Julius Nyerere, “Stability in Africa”, An address presented at the University of Toronto, Canada in 1969, reproduced in Africa Contemporary Record 2 (1969 - 1970) pp. 30-31, cited by J.O. Ihonvbere in his article, “Underdevelopment and Human Rights in Africa” in Shepherd, G. W. Jr. (ed.) Emerging Human Rights: The African Political Economy Context (New York: Greenwood Press, 1990) p. 56. 113 Minerva Mills Ltd v Union of India (1980) SC. 114 See Ogbu, op. cit., p. 21. 115 Steiner and Alston, op. cit., p. 257. 116 Official letters written by the Pope and sent to all Roman Catholic bishops in which the views of the church on various issues: religious, philosophical, social, economic and even political are expressed.
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importance of the right to subsistence with dignity, while the later ‘‘liberation theology’’117 tried
to build on this “preferential option for the poor’’118 introduced and affirmed by the Catholic
Bishops of Latin America at Medecline, Columbia in 1968. Steiner and Alston maintain that
virtually all the major religions manifest comparable concern for the poor and the oppressed119.
They note further that other sources often referred to include philosophical analyses such as
those of Thomas Paine, Karl Marx, Immanuel Kant and John Rawls; the political programmes
of the 19th century Fabian socialists in Britain, Chancellor Bismarck in Germany (who
introduced social insurance schemes in the 1880s), and the New Dealers in the United States of
America as well as certain constitutional precedents120.
Even though Steiner and Alston appear to have merely enumerated the often-referred sources of
ESC rights without laying any claim to a chronological presentation of the evolution of these
rights, the learned authors, it is here submitted, may have fallen into the trap of what erudite C.
C. Nweze121 describes as the “historical revisionism that entwines the origins of socio-economic
rights”.122 According to Nweze, one of such revisionist views is the claim that these rights owe
their emergence to the socialist revolutions against exploitation that took place in the early
1900s, tracing these rights to philosophical thoughts such as those found in Karl Marx’s critique
of the 19th century capitalism and in the Roman Catholic encyclicals like Rerum Novarum of
Leo XIII, 1891. Another scholar with whose views Nweze associates himself is Prof. Claire
117 A product of a progressive catholic clergy which, in the course of its development and dissemination resulted in the introduction into the church philosophy of the idea that there was the need to emphasise the physical as much as the spiritual needs of Christians. 118 The idea that in all its works, the church had to give first priority to its impoverished constituency. See generally, Gasiokwu op. cit., pp. 81-84. 119 Steiner and Alston, op. cit., p. 257 citing Martin Schupach, “The Churches and Human Rights: Catholic and Protestant Human Rights Views as Reflected in Church Statements”, 6 Harv. Hum. Rts. J. 127 (1993). 120 Such as the Mexican Constitution of 1917, the First and subsequent Soviet Constitutions and the 1919 Constitution of the Weimer Republic. 121 Nweze, Loc. cit., p. 79. 122 Ibid, p. 80.
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Palley who opines that the evolution of these rights antedated Engel whose writings antedated,
and indeed influenced, the philosophical thoughts of Karl Marx. According to Palley,
Contrary to prevalent opinions that such rights arose out of Marxist critique and third world socialism, it would be more appropriate to say that Engels’ and Marx’s analyses derived from perusal of statutory reports under the United Kingdom Factory Act of 1833 and the Mines Regulation Act of 1842, as well as from Select Committee and Royal Commission Reports123
Stating that historical factors would appear to bear out Palley’s position, Nweze postulates, in
line with Palley’s argument, that industrialism laid the foundation for the emergence of socio-
economic rights. To prove this historical hypothesis, Nweze notes that the negative impact of
industrialism in the United Kingdom brought into focus the need for industrial reforms.
Government was, therefore, propelled into taking steps to ameliorate, through legislation, the
indignities occasioned on factories and factory workers124. The reports of factory inspectors
under the Factory Act, it is believed, greatly altered public opinion in England, progressively
reduced working hours to ten, and precipitated actions to protect women and children125. These
reports and other developments, it is also believed, catalysed immense philosophical musings
throughout Europe and greatly inspired the philosophical mind of Fredrick Engels to write his
two classical works, Conditions of the Working Class in England and Capital126 which books
helped in shaping Marx’s philosophical views. According to Nweze, Karl Marx’s Communist
Manifesto was Marx’s reaction to the onset of metropolitanism which resulted from industrial
revolution with the attendant rural migration, culminating in loss of identity and traditional
family values.127 The book enunciated socialism which political philosophy was later attacked in
1891 by Pope Leo XIII in one of his encyclicals, Rerum Novarum in which he also responded to
the cha1lenges of the industrial revolution as they affected the socio- economic well being of
123 Claire Palley, The United Kingdom and Human Rights (London: Sweet and Maxwell, 1991) p. 25. 124 The products were the Health and Morals Act 1802; Factory Act, 1833 and Mines Regulation Act, 1842. 125 See C. C. Nweze loc. cit., p. 80. 126 Ibid. 127 ‘See G. Ehusani, The Social Gospel (Lagos: Ambassador Publications, 1992) p. 6.
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man.128 To Palley and Nweze, it appears rather anachronistic, therefore, to trace the historical
origin of ESC rights to Karl Marx’s critique of 19th century capitalism or to the Papal
encyclicals, when it is clear that Karl Marx drew inspiration from Fredrick Engel who himself
was inspired by the socio-economic fallouts of the industrial revolution. Pope Leo XIII on his
own part wrote his Rerum Novarum as a later reaction to Marx’s socialist propositions. It may
appear more attractive to endorse, as Nweze does, C1air Palley’s conclusion that
…the concept of socio-economic rights sprang in large measure from legislation and criticism of social policy (in the United Kingdom) from the 18th century onwards…”129
Insightful as Claire Parley’s account may be, C. C. Nweze notes that the primary historical force
behind the Factory Act of 1833, namely the role of the British social reformer, Robert Owen is
regrettably missing in that ‘‘jurisprudential historiography”130 Owen was among the first people
to recognize the inseparable linkage between individual rights and social justice and was noted
for his postulation that government policy must rectify deplorable economic and social
conditions of the individual since the individual is a product of his environment. In fact, it was
Owen who was said to have persistently pressed for the Factory Act131.
It is humbly submitted that C. C. Nweze’s critique of what he describes as historical revisionism
is both compelling and unassailable. The profundity of the logic in his intellectual analyses
meets a compatible partner in the historical exactitude of Palley’s chronological reconstruction
and, jointly, they successfully drive home the claim that the origins of the concept of socio-
economic rights, as presented by some scholars are entwined in historical revisionism. It is
however submitted, with respect, that both Palley’s account and Nweze’s analyses also have
vital links missing in this search for the origins of ESC right. Their views, like most other views
128 See Gasiokwu op. cit., p. 83. Note that subsequent encyclicals made far-reaching progressive declarations and expressed concern for the suffering of peoples and these contributed immensely to the early growth and development of the jurisprudence of socio-economic rights around the world. 129 See Claire Palley, op. cit., p. 25. 130 See C. C. Nweze, loc. cit., p. 81. It is feared that this may not be the only thing missing. 131 Ibid.
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of Western authorship, completely fail to present the African and Asian perspectives on the
subject. A number of questions need to be answered in this respect: did ESC rights evolve and
develop in the United Kingdom, and indeed in Europe, to the exclusion of other parts of the
world? Is it possible that traditional (primitive?) African or Asian societies did not, at any stage
in their histories, experience anything that could pass for the concept of ESC rights? Was the
idea or concept of these rights introduced into Africa and Asia only after their respective
contacts with Europe and America? The simple and general answer to these questions is in the
negative.
Each societal epoch132 had its own diverse ways of expressing the concept of human rights,
including ESC rights. This study subscribes completely to the views of Professor Amechi
Uchegbu133 that it is naive to imagine that the concept of human rights was ever the product of
any particular civilization. It is also agreeable that if such a claim were to be made, human
rights (including ESC rights) could then have originated in Africa as the seat of the origin of
man. Western writers’ constant attempts to present human rights as being natives of Europe and
America and alien to Africa and Asia, it is submitted, is yet an extension of their intellectual
arrogance and feeling of superiority.134 It is hoped that African and Asian scholars will not today
continue to subscribe or succumb to that intellectual neo-colonialism, mental imperialism, and
racio-cultural intimidation.
In fact, long before human rights were written down in international documents and national
constitutions, people revealed their commitment to principles of propriety, justice, and caring
through cultural practices and oral traditions. A certain writer135 has stated that basic rights and
132 Africa and Asia inclusive. 133 Amechi Uchegbu “Economic Right – the African Charter on Human Rights” in J. A. Omotola and A. A. Adeosun (eds.) Law and Development (Lagos: Lagos University Press, 1987) p. 163. 134 See also American Anthropological Association, “Statement on Human Rights”, 49 Amer. Anthropologist No. 4,539 (1947) cited in Steiner and Alston op. cit. p. 199. 135 David Shiman, ‘‘ Economic, Social and Cultural Rights as Human Rights: Historical Background”.
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responsibilities, such as the right to food and the golden rule of “do unto others as you would
have them do unto you”, revolved around family, tribe, religion, class, community, or state.
According to Shiman, the earliest attempts by literate societies to write about rights and
responsibilities date back, more than 4, 000 years, to the Babylon Code of Hammurabi. This
Code, the Holy Bible, the Analects of Confucius, the Holy Koran, and the Hindu Vedas are five
of the oldest written sources which address questions of peoples’ duties, rights, and
responsibilities and give injunctions to their adherents bothering on the care for the old, those in
need and those who cannot take care of themselves.136
African traditional religions, cultures and philosophy also preach those principles which
encapsulate the concept of ESC rights and they predated the discovery of writing. It is,
therefore, submitted that all reliable and authentic origins of the concept of ESC rights must of
necessity predate the writing stage of man’s history. If, however, the question is about the
subsequent historical development, international dissemination and recognition of ESC rights in
the jurisprudence of international human rights, then the accounts of the earliest written sources
may be regarded as the origins of the entrance of these rights into the jurisprudence of
international human rights discourse. That, I think, was what Nweze did in the brilliant article
hereinbefore generously referred. In that regard, his learned views remain unimpeachably
supportable.
2.3.3 The Normative Framework on Economic, Social and Cultural Rights.
Several international human rights instruments137 recognise and make provision for ESC rights.
In addition, many regional human rights instruments address the rights in this category.138 ESC
Available at http://www.1umn.edu/humanrts/edumat/hreduesries/tb1b/Section1/tb1-2htm. Last accessed on 12/06/2012.
136 Ibid. See also Steiner and Alston op. cit., p. 257. 137 See The Universal Declaration of Human Rights (1948); the International Covenant on Economic, Social and Cultural Rights,( 1966); the International Covenant on the Elimination of All Forms of Racial Discrimination (ICEAFRD, 1965), the Declaration on Social Progress and Development
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rights are also widely recognized in municipal legal systems, although not to the same extent as
civil and political rights, with some of these domestic legal systems explicitly recognizing them
as fully justiciable rights139. In many other national constitutions,140 the protection and
promotion of these rights are included merely as general state duties within the legal and policy
spheres. They act as mere guides for the formulation and implementation of state policies and
programmes of governance. It has been noted that virtually all states have domestic statutes of
one form or another that incorporate elements of ESC rights. A great majority of states have also
ratified international treaties recognizing these rights, with some going further to adopt national
and local laws to give effect to the ratified treaties.141
A detailed discussion of all the legal instruments that constitute the normative framework for the
ESC rights is beyond the scope of this dissertation. It is, however, imperative that in this section
of the dissertation, an attempt be made at an analysis of the principal international legal
instrument on ESC rights: the International Covenant on Economic, Social and Cultural Rights,
1966. In doing this, the study will also simultaneously look at the provisions of the Universal
Declaration of Human Rights on the rights under discussion. The domestic legal framework on
these rights with respect to the jurisdictions within the purview of this dissertation shall be
respectively discussed in subsequent chapters.
2.3.3.1 The International Covenant on Economic, Social and Cultural Rights.
(1969), the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) (1979); Convention on the Rights of the Child (1989), International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families (1990) and The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) (2009). 138 Some of these regional instruments include the African Charter on Human and Peoples Rights (ACHPR) (1981); Additional Protocol in the Area of Economic, Social and Cultural Rights to the American Convention on Human Rights (Protocol of San Salvador) (1988); European Social Charter (revised 1996) and the Additional Protocol thereto. 139 Examples of legal systems that provide for the full justiciability of ESC rights are South Africa, Finland and Portugal. Ghana’s constitutional bill of rights provides for the justiciability of a few economic, social and cultural rights. 140 Such as those of India, Netherlands, Mexico and Nigeria. 141 See generally, The United Nations, Economic, Social and Cultural Rights: A Handbook for National Human Rights Institutions (New York and Geneva: United Nations Publications, 2005) p.3.
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The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multi-
lateral treaty adopted and opened for signature, ratification and accession by a United Nations
General Assembly resolution142 after almost 20 years of drafting debates. It entered into force on
January 3, 1976, a decade later. This Covenant is one of the legs of the tripod on which the
International Bill of Rights stands. The other two legs, as earlier stated, are the Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights,
including the latter’s first and second Optional Protocols. As of 2013, the ICESCR had 160
parties.143 A further seven had signed, but not yet ratified the Covenant.144 The Covenant is
monitored by the UN Committee on Economic, Social and Cultural Rights. Parties are under a
treaty obligation to ensure the protection and implementation of the rights contained in the
Covenant.
2.3.3.1.1 Rights Contained in the Covenant.
The ICESCR contains six sections, comprising a Preamble and five Parts. The Parts contain 31
articles. The Preamble is worded almost exactly as that of the ICCPR and provides a framework
for the interpretation of the rights contained in the Covenant. It also asserts the great moral
importance of these rights by echoing the idea of the inherent dignity of the human person
founded in the UDHR as the basis of all human rights. One very important feature of the
Preamble is that it underscores the indivisibility of civil and political rights and ESC rights by
stating that man’s freedom from want can only be attained in environments made so conducive
that everyone can enjoy both the civil and political rights and ESC rights.
142 UN Gen. Assembly Res. 2200A (XXI) of 16th December, 1966. 143 See “UN Treaty Collection: International Covenant on Economic, Social and Cultural Rights,” available at http://www.un.org/Pages/ViewDetailsaspx?src. Accessed 24/10/2011. See also en.wikipeddia.org/wiki/International-Covenant-on-Economic-Social-and-Cultural-Rights. Accessed 24/12/2013.
144 The United States of America is one such State, having signed it during the Jimmy Carter administration. See Amnesty International, “Economic, Social and Cultural Rights: Questions and Answers”, available at http://www.amnestyusa.,org/escr/files/escr qa., Accessed on 12/8/2010.
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The rights provided under the Covenant include the right to work and to livelihood145, the right
to just and favourable conditions of work, including fair remuneration for work of equal value
without distinction of any kind146, the right to form and join trade unions of one’s choice147, the
right to social security148, the right to family life, including marriage, maternity protection,
protection and assistance to children and young persons,149 the right to an adequate standard of
living, including adequate food, housing and clothing, as well as the continuous improvement of
living conditions150, the right to the highest attainable standard of physical and mental health,151
the right to education,152 the undertaking by affected states parties to develop detailed plans of
action for compulsory free primary education,153 the right to participate in the cultural life, to
enjoy the benefits of scientific progress, and to benefit from the protection of the moral and
material interest resulting from any scientific, literary or artistic production which one is the
author.154
As noted earlier, articles 22 - 27 of the UDHR deal with ESC rights which are fundamentally
linked with those in the ICESCR. It may not, therefore, be out of place to analyse them
together.155 Both the UDHR and the ICSECR recognize the right to work, to form and to join
trade unions as well as the right to just and favourable conditions of works.156 The view of the
eminent scholar and jurist, C. C. Nweze157 is that there appears to be considerable merit in
145 Art, 6, International Covenant on Economic, Social and Cultural Rights. 146 Ibid., Art. 7. 147 Ibid., Art. 8. 148 Ibid., Art. 9. 149 Ibid., Art. 10. 150 Ibid., Art. 11. 151 Ibid., Art. 12. 152 Ibid., Art. 13. 153 Ibid., Art. 14. 154 Ibid., Art. 15. 155 For want of space, only a few of these rights shall be considered while more detailed and comprehensive analysis will be reserved for further researches. 156 UDHR, Arts. 23 (1), (2) and (4); ICESCR, Arts. 6, 7 and 8. 157 “Evolution of the Concept of Socio-economic Rights Jurisprudence: International and National Perspectives” loc. cit., p. 85.
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Michelle Jacquart’s contention158 that there is no guarantee of this right to work since the
recognition of the right to social security159 and of the right to “protection against
unemployment’’160 implies acceptance of the inevitability of unemployment and the
corresponding duty of the state to provide for the subsistence of the unemployed. It appears
convincing, therefore, to conclude that the obligation of state in this respect is to guarantee the
right of access to work rather than the right to work (in return for remuneration)161. Put
differently, states are under the obligation to provide non-discriminatory access of everyone to
the opportunity to gain his living by work which he freely chooses or accepts.162 Both
instruments also recognize the right to family protection and assistance as well as the right to
adequate standard of living.163 One of the most frequently cited reasons for the poor protection
and enforcement of ESC rights is that their provisions in the ICESCR are vague and
indeterminate.164 One of the rights often cited to buttress this argument is the right to adequate
standard of living. The questions are often asked; what amounts to adequate standard of living?
Who determines the standard or yardstick for the evaluation?
Several other shortcomings of the ICESCR have also been identified by some writers.165 Some
of the identified inadequacies include the claim that the rights therein provided are merely
aspirational and programmatic. The obligations imposed on the states are alleged to be subject to
progressive realization while those of civil and political rights are of immediate effect.
158 See Michele Jacquart, “Economic, Social and Cultural Right”, in M. Bediaoyi (ed), International Law: Achievements and Prospects (London: Martinus Nijhoff Publishers, 1991) p. 1086. 159 Art. 23 (1) UDHR; Art 9, ICESCR. 160 Art. 23 (1), UDHR. 161 See M. Jacquart, loc. cit., p.1087. 162 Art. 6 ICESCR. 163 Arts. 25 (1) and (2) UDHR; Arts. 10 (1), (2), (3), 11 (1) and (2), 66, ICESCR. 164 See International Commission of Jurists, Courts and Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experience of Justiciability (Geneva: International Commission of Jurists, 2008) p. 15. 165 Shedrack Agbakwa, “Reclaiming Humanity: Economic, Social and Cultural Rights as the Cornerstone of African Human Rights”, Yale Human Rights and Development L. J, Vol. 5, (2002) p. 192; International Commission of Jurists op. cit, p. 15.
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Another criticism is that the ICESCR does not have an in-built mechanism for the enforcement
of the rights. These and many more perceived shortcomings of the ICESCR and the rights it
recognizes shall be fully discussed in the next chapter which deals with the challenges to the
realization, protection and enforcement of these rights.
Suffice it to humbly submit at this point that assuming, without conceding, that these alleged
shortcomings do, in fact, exist, their existence is not enough reason to deny ESC rights
protection and enforcement.
2.3.3.1.2 Mechanisms for implementation and Enforcement
(a) Periodic Reports to the UN Committee on Economic, Social and Cultural Rights
The United Nations body formally vested with the duty of monitoring compliance with the
provisions of the Covenant is the United Nations Economic and Social Council.166 By Article 16
(1) of the Covenant, states parties undertake to submit reports on the measures which they have
adopted and the progress they have made in achieving the observance of the rights recognized in
the Covenant. It is important to point out that this function of monitoring compliance is now
being performed by the Committee on Economic, Social and Cultural Rights,167 consisting of 18
independent experts, elected by the Economic and Social Council, who serve in their personal
capacity, not as representatives of governments. They serve four year terms.168 An initial report
166 Art. 16(2)(a), ICESCR. 167 Established in 1985, this committee met for the first time in 1987. 168 See Steiner and Alston, op. cit. 264; Global Governance Watch “International Covenant on Economic,
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by each state party is due within two years of entry into force of the Covenant for that state, and
subsequently, reports are due after five - year intervals.169 Upon completion by the committee of
its analysis of reports and the appearance by states parties, the committee concludes its
consideration by issuing “concluding observations” which constitute the decision of the
committee regarding the status of the Covenant in a given state party. It is here submitted that
while the committee’s concluding observations, suggestions, and remarks may not be legally
binding, they carry the weight of the opinions of the only expert body entrusted with, and
capable of, making such pronouncements. Consequently, for state parties to ignore such views,
it would be to show bad faith in implementing their covenant-based obligations.
In 1988, the committee introduced the preparation of General Comments170 on the rights and
provisions of the Covenant. It has been remarked, and that view is respectfully shared, that these
General Comments give further substance to the norms and provisions of the Covenant and
provide the much-needed jurisprudence on the content, character, nature and substance of ESC
rights as well as the extent of state parties’ obligations therein.171
In addition, the General Comments serve as means of promoting the imp1ementation of the
Covenant by drawing the attention of states parties to insufficiencies disclosed by a number of
states parties’ reports, and inducing renewed attention of stakeholders to particular provisions of
the Covenant.172 It is, however, regrettable to note that states parties do not take serious their
Social and Cultural Rights” available at http://www.globalgovernancewatch.org/human-rights-the- international/ covenant-on-economic-social-and-cultural–rights. Accessed on 30/03/2011. See also http://en.wikipedia. org/wiki/Internal-Covenant-on-Social-Economic-and-Cultural-Rights. Accessed on 30/03/2011.
169 See, Articles 16 and 17, ICESCR. 170 Well articulated statements aimed at providing interpretative clarity to the intent, meaning and content of the Covenant. There are at least 20 such comments adopted and issued by the committee at the present. See ECOSOC Resolution E/RES/1985/17 of 28 May, 1985. 171 See United Nations, Economic, Social and Cultural Rights : A Handbook for National Human Rights Institutions, op. cit., p.6. 172 See Global Governance Watch, “The International Covenant on Economic, Social and Cultural Rights”. loc. cit.
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undertaking to file periodic reports of compliance as required by the Covenant.173 This is a
reflection of the general poor attitude to the protection, promotion and enforcement of ESC
rights in contrast to the attention paid to their civil and political counterparts.174
(b) The Optional Protocol to the International Covenant on Economic Social and
Cultural Rights.
On 10 December, 2008, the UN General Assembly adopted by consensus the Optional Protocol
to the International Covenant on Economic, Social and Cultural Rights (OP-ICECR)175 which
needed only 10 ratifications to go into force. It was opened for ratification on 24 September,
2009 and on that day, 32 states parties176 signed the protocol into force. The realization of this
optional protocol represents, indeed, a veritable milestone in the history of human rights,
bridging a historical gap and making a very strong statement about the equal value and
importance of all human rights and the need to strengthen and intensify the struggle for the
protection and enforcement of ESC rights. It has to be noted that since 1966 when the ICCPR
and the ICESCR were adopted, the ICCPR has already had two optional protocols177 while the
ICESCR had been existing without any optional protocol until now. This situation arose as a
product of the second-class position accorded ESC rights in comparison to their civil and
political counterparts. Because of the perceived differences between the two categories of rights
173 See Steiner and Alston, op. cit p. 267. 174 Ibid. 175 See UN General Assembly Resolution A/RES/63/117. 176 Including Argentina, Armenia, Belgium, Bolivia, Chile, Congo, Ecuador, Finland, Gabon, Guinea Bissau, Italy, Luxemburg, Madagasca, Mali, Mongolia, Netherlands, Portugal, Senegal, Slovenia, Spain, Togo, Ukraine and Uruguay. See http://www.communion lawcenter.org.za/cle-projects/socio- economic-rights/advocacy-monitoring and submissions, accessed on 14/04/2011. See also http://treaties.un.org/pages.viewdetails.aspx?sre, accessed 21/04/2011. 177 The First Optional Protocol to the ICCPR which was adopted by the UN General Assembly on 16 December, 1966 and entered into force on 23 March, I allows individuals to submit complaints to the Human Rights Committee concerning cases of violation of the rights guaranteed under the Covenant. The Second which aims at the abolition of the death penalty was adopted in 1989 and entered into force on 11 July, 1991.
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as well as the alleged nature178 of ESC rights, the international community had consistently
opposed the establishment of any complaints mechanism which would encourage individuals or
groups to challenge any breach of any of the rights provided in the Covenant. Though long
overdue, the adoption of this current optional protocol is, therefore, a very welcome momentous
development in the history and development of international human rights, in general, and the
protection and enforcement of ESC rights in particular.179 With this protocol now in place,
individuals or groups who claim that any of their ESC rights as set forth in the Covenant has
been violated, can bring a complaint to the Committee on Economic, Social and Cultural
Rights180 which can then review the said complaint the same way as the traditional court.
The protocol provides for two major complaints mechanisms - the communications procedure181
and the inquiry procedure.182 The committee shall not consider a communication unless it has
ascertained that all available domestic remedies have been exhausted, provided that if the
application of such remedies is unreasonably prolonged, this rule shall not apply.183. A detailed
article-by-article analysis of the provisions of this protocol is beyond the contemplation of this
research. It will suffice to say, however, that having an international mechanism like the OP-
ICESCR, which empowers the Committee on Economic, Social and Cultural Rights to review
complaints will contribute to further clarifying the content of the rights provided under the
Covenant as well as the extent of states parties’ obligations. It will also provide a guide for
national courts and generally help in generating useful jurisprudence in the area of ESC rights. It
is important, however, to note that at the time of this research none of the jurisdictions being
178 See G.J.H. Van Hoof, “The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views” in Philip Alston and K. Tomasevski (eds.) The Right to Food (1984) cited in Steiner and Alston, op. cit., p. 279. 179 See http:/www.right-to-education.org/node/571. Accessed on 30/04/2010. 180 Art. 2, OP-ICESCR. 181 Ibid. 182 Ibid., Art. 1I. 183 Ibid., Art. 3 (1).
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appraised in this dissertation, as well as some developed countries like the United States and
Britain had ratified the Protocol.184
2.3.3.2 The African Charter on Human and Peoples Rights (ACHPR)
The African Charter on Human and Peoples’ Rights185 was adopted at the 18th Assembly of
Heads of State and Government of the then Organization of African Unity (OAU) in Nairobi
Kenya in 1981, but came into effect on 21 October, 1986 having been ratified by a majority of
African states. The Charter guarantees such ESC rights as the right to work under equitable and
satisfactory conditions, and equal pay for equal work,186 the right to health,187 the right to
education,188 family rights,189 the right to economic, social and cultural development,190 and the
right to a general satisfactory environment favourable to development.191 It has been observed
that although the right to housing is not explicitly recognized under the African Charter, a
community interpretation of the provisions protecting the right to enjoy the best attainable state
of mental and physical health, the right to property,192 and the protection accorded to the family
approximates to a right to shelter or housing while the right to food is implicit in such provisions
184 Indeed, the United States of America only signed the ICESCR and has not even ratified the Covenant. 185 Hereinafter” “ACHPR” or “African Charter” or “The Charter” is also called “The Banjul Charter”, after Banjul, the capital of The Gambia which hosted most of the conferences on the drafting of the Charter. 186 Ibid., Art. 15. 187 Ibid., Art. 16. 188 Ibid., Art. 17. 189 Ibid., Art. 18. 190 Ibid .,Art. 22. 191 Ibid., Art. 24. 192Ibid., Art. 14 .
lxxviii
as the right to life,193 the right to health and the right to economic, social and cultural
development.194 This view is supportable.
The African Charter represents “a significantly new and challenging normative framework for
the implementation of ESC rights”.195 It makes all the rights recognized therein justiciable
before the African Commission on Human and Peoples’ Rights (African Commission) which is
the regional institution empowered to promote and ensure the protection and implementation of
the rights and duties under the Charter.196 Another very interesting feature of the African
Charter is that it presents ESC rights free of claw-back clauses197 which are present in the
regime of civil and political rights. Furthermore, it does not contain a derogation clause.
Importantly, unlike under the ICESCR, states parties assume obligations that are of immediate
effect and not subject to the progressive realization requirement. Also, state parties owe
obligations to respect, protect, and fulfill all the rights in the Charter198 without any distinction
as to categories.
2.3.3.2.1 Implementation Mechanisms of the Rights under the ACHPR.
(a) The African Commission on Human and Peoples Rights.
The African Charter makes provision for the establishment of the African Commission on
Human and Peoples’ Rights, an eleven - man member institution, to promote and protect human
and peoples’ rights’199 with its members serving in their individual capacities.200 The
193 Ibid., Art. 4 . 194 See. Stanley Ibe, “Beyond Justifiability: Realizing the Promise of Socio-Economic Rights in Nigeria” loc. cit., pp227-228. 195 C. A. Odinkalu. “Implementing Economic, Social and Culture Rights under the African Charter on Human and Peoples Rights” in M. Evans and R. Murray (eds.) The African Charter on Human and People Rights — The System in Practice, 1986 - 2002 cited in Stanley lbe, Ibid., p. 227. 196 Art. 30, ACHPR. See also Art. 45 which describes the functions of the African Commission. 197 These are clauses that permit, in normal circumstances, breaches of obligations for a number of reasons. 198 Later in this dissertation, the full implications of the obligations to respect, protect, and fulfil as applied to both the ACHPR and the ICESCR shall be explained. 199 Art.30, ACHPR. 200 Ibid.,Art.31.
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Commission has competence to receive communications from states and other sources201 and to
interpret all the provisions of the African Charter at the request of a party, an institution of the
African Union or an African organization recognized by African Union.202 Inter-state
communications can only be entertained by the Commission on the condition that the
complainant had exhausted all domestic remedies, which requirement can only be displaced if
the procedure for achieving domestic remedy will be unduly prolonged.203 The Charter also
provides for communications other than those of states parties204 which can only be received and
considered upon the satisfaction of certain conditions precedent.205 There is no specific
provision in the Charter as to whether or not an individual can bring a complaint before the
Commission. It has, however, been suggested that individual communications can be implied
from the provisions of Article 55(1)(i).206 Also, states parties to the African Charter undertake to
submit, every two years, a report of legislative or other measures taken with a view to giving
effect to the provisions of the Charter.207 Udu further remarks that the Charter is bereft of
provisions for effective enforcement machinery despite its broad powers contained in Article
45(2). Pointing out that the Charter is more promotional than protective of human and peoples’
rights, he remarks that it emphasizes morality and advocates reconciliation and recommendation
without providing for any court system by way of litigation.208 On a more general note, the
Charter has been criticized as lacking in conceptual clarity, making enforcement of the rights
therein contained difficult.209 This dissertation shares this view. One example of this vagueness
is the provision for the right to enjoy the best attainable state of mental and physical health.210
The Charter, just like the ICESCR, neither defines “standard of health” nor does it describe 201 Ibid.,Art.45(2). 202 Ibid.,Art.45(3). 203 Ibid.,Art.50. 204 Ibid.,Art.55(1). 205 Ibid.,Art.56. 206 A.E. Udu, op. cit., p. 50. 207 As provided under Article 1. 208 Udu op. cit., p. 51. 209 See M. Gomez, “Social Economic Rights Commissions” (1995) 17 Human Rts. Q. 155 at p. 161. 210 ACHPR, Article 16.
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“best attainable state’, thereby leaving states with little guidance as to the obligation arising out
of it, and individuals with no clue as to the standard of expectation from their governments211 In
addition, the Charter does not make provision for all ESC rights while some of those it
recognizes are limited in their application. It is also important to note that just like the OP-
ICESCR, the right of audience before the African Commission is subject to the exhaustion of
local remedies, except in cases where these remedies are either unavailable or politically
inexpedient. This dissertation shall discuss these and other shortcomings of the major
international instruments as challenges to the effective protection and enforcement of ESC rights
subsequently.
(b) The African Court on Human and Peoples’ Rights (ACHPR).
A recent mechanism for the protection of human rights in the African system is the Africa Court
on Human and Peoples’ Rights. The Protocol to the African Charter on Human and Peoples’
Rights on the Establishment of an African Court on Human and Peoples’ Rights was adopted by
the Summit of Heads of State and Government in Ouagadougou, Burkina Faso on 9 June,
l998.212 It entered into force on January 25, 2004 upon ratification by fifteen member states. The
court is seated in Arusha, Tanzania so that it would utilize the facilities developed for the
International Criminal Tribunal for Rwanda (ICTR). The judges were elected in 2006. The court
comprises eleven judges by member states of the African Union (AU) with only states that are
parties to the protocol proposing candidates and no more than one national of any state sitting on
the court. The judges who are elected for alternating and renewable six-year terms, perform their
functions on part time basis213 and are not there as representatives of their states.214
211 Stanley Ibe, loc. cit., p. 229. 212 See www.au.int/en/organs/cj. Accessed on 10/4/2011 213 Except for the President of the Court, who serves full-time. 214 See generally http:.//www.asil.org/insights060919.cfm, accessed on 15/05/2012.
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The African Court on Human and Peoples’ Rights is empowered to act both in adjudicatory and
advisory capacities.215 The jurisdiction of the court can also be compulsorily or optionally
invoked. The jurisdiction of the court is compulsorily exercisable with respect to cases
submitted by the African Commission on Human and Peoples’ Rights, a state party which has
filed a complaint to the Commission, the state party against which a complaint has been filed, a
state party which claims that her citizen’s human right has been violated, and African
intergovernmental organizations”.216 The optional jurisdiction of the court relates to cases filed
by individuals and non-governmental organizations. It is also important to note that a member
state or organization recognized by the AU can request for the opinion of the court on any legal
matter relating to the African Charter or any other African human rights instrument. Opinions so
rendered have no binding force but may, all the same, be useful in interpreting provisions of the
ACHPR.
In coming to its decisions, the African Court applies the provisions of the African Charter and
any other relevant human rights instrument ratified by the states involved in the complaint.217 It
is submitted that this provision can be relied upon to invoke the app1ication of other
international human rights treaties and conventions. It is regrettably noteworthy that the first
ever judgement delivered by the court since its coming into force was delivered on 15
December, 2009. In that decision, the court found an application against Senegal
inadmissible.218 It should also be noted that to date, only 26 out of the 54 countries of Africa
have ratified the Protocol establishing this court. On July 1, 2008, for various political, financial
and logistic reasons, the AU Summit in Egypt adopted a protocol on the merger of African
215 Arts. 3 and 4, Protocol on the African Court on Human and Peoples’ Rights. 216 Ibid., Art. 5 (1). 217 Ibid., Art. 7. 218 Michelot Yonogogombaye v The Republic of Senegal Available at en.wikipedia.org/wiki/African- Court… Accessed on 17/04/2012.
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Court on Human and Peoples Rights with the non-existent African Court of Justice of the AU219,
following an earlier decision by member states at a June 2004 AU Summit. As at the time of this
219 The name of the new court shall be African Court of Justice and Human Rights (ACJHR).
CHAPTER FOUR
SOUTH AFRICAN EXPERIENCE IN THE PROTECTION AND ENFOCEMENT OF
ECONOMIC, SOCIAL AND CULTURAL RIGHTS.
4.1 Introduction.
South Africa seems to be the most convenient take-off point in the critical evaluation of the
legal protection and enforcement of ESC rights in the three jurisdictions selected for a
comparative study in this dissertation. This choice is for a number of reasons. It is a consensus
opinion among socio-economic rights commentators219 that the South African Constitution219 is
well known for its entrenchment of a variety of ESC rights. In fact, what makes the South
African Constitution to stand out among the constitutions of most countries of the world is the
fact that it contains a Bill of Rights which, without distinction, provides for all the categories of
human rights that are ordinarily included in most international human rights instruments,
namely, civil and political rights, as well as ESC rights. On account of this, the South African
Bill of Rights is generally regarded as one of the most progressive in the world. The same
cannot be said of the constitutions of India, Nigeria, and those of many other countries of the
world. South Africa is also seen as a benchmark in terms of the constitutional protection and
judicial enforcement of ESC rights.219
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This chapter shall first discuss the constitutional protection of ESC rights under which it shall
give the historical background to the inclusion of these rights in the South African Constitution
and present the ranges of ESC rights provided for in the Constitution. It shall also take a look at
the statutory institutional mechanisms for the enforcement of these rights, such as the South
African Human Rights Commission and The Public Protector. Furthermore, the chapter will
assess the level of South Africa’s compliance with the provisions of the ICESCR dealing with
States parties’ obligation to send periodic reports of compliance to the Committee. Then the
chapter discusses the role of the South African judiciary in the enforcement of ESC rights, does
an evaluation of the South African experience and is rounded off with a conclusion.
4.2 Constitutional Protection of Economic, Social and Cultural Rights in South Africa.
4.2.1 A Historical Overview.
The intention here is not to do a detailed discussion of South Africa’s constitutional history.
That falls far beyond the scope of this dissertation. It may suffice, however, to say that so far,
South Africa has had five constitutions. According to Mubangizi,219 the very first of these
constitutions was adopted after the formation of the South African Union in 1910, the second
in 1961, the third in 1983, the fourth in 1993 and the last and present constitution in 1996. The
1910, 1961, and 1983 constitutions contained no bill of rights. So, human rights, at those periods
were constitutionally alien to South Africa and any talk of human rights, let alone ESC rights,
would have been meaningless.219 Consideration for the inclusion of ESC rights in the
Constitution of South Africa came up only during the multi-party negotiations that led to the
current constitutional dispensation. The said negotiations culminated in the eventual inclusion of
these rights, first, in the 1993 Interim Constitution of South Africa and later, in the 1996 “final”
Constitution. The road to the inclusion of ESC rights as justiciable rights was anything but
smooth. The efforts met with very stiff opposition. Some people argued that ESC rights were
lxxxiv
universally inherently non-justiciable and not suited to judicial enforcement.219 Some others
argued that the protection of such rights should be a task for the legislature and the executive
and that constitutionalizing them would have the inevitable effect of transferring power from
these two branches of government to the judiciary which lacks the democratic legitimacy
necessary to make decisions concerning allocation of social and economic resources, thereby
flouting the principle of separation of powers.219 On the other hand, however, some people
advanced the argument that there was, in fact, no principled objection to the inclusion of ESC
rights in a justiciable bill of rights and that the vital issue was the extent and nature of their
inclusion.219
These arguments came up for determination in the First Certification Judgment.219 The South
African Constitutional Court held that:
It cannot be said that by including socio-economic rights in a bill of rights, a task is conferred upon the courts so different from that ordinarily conferred upon them by a bill of rights that it results in a breach of the separation of powers.219
The Court further pointed out that civil and political rights often have budgetary consequences
akin to those of socio-economic rights, and concluded that:
The fact that socio-economic rights will almost inevitably give rise to such implications does not seem to us to be a bar to their justiciability. At the very minimum, socio-economic rights can be negatively protected from improper invasion.219
Professor J.C. Mubangizi notes that the inclusion of ESC rights in the South African
Constitution can be better appreciated against the backdrop of the unique history of that country
– a history that was characterized by gross human rights violations, denial of access to social
goods and services to the majority of the people and lack of access to economic means and
resources.219 It also has to be seen in the context of the level of widespread poverty occasioned
by a historically unfair and unjust political and socio-economic system. The white minority
enjoyed access to better quality goods and services while the black majority either had access to
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only poor quality services or did not have access at all.219 It is within this context of deprivation
and discrimination that the struggle for human rights and against apartheid was carried on – a
struggle for both political and socio-economic equality. As early as 1955, the Freedom Charter
(the Charter)219 made the call for socio-economic justice in addition to political rights. It also
called for the removal of restriction on land ownership, and equal access to work, housing, and
education-related rights. The Charter, therefore, set the platform for a future constitution with a
bill of rights.
Given the above socio-political circumstances, it was envisioned that including ESC rights in
the constitution would play some vital role in off-setting the imbalance and reducing the
inequality.219 It is, therefore, in the context, and against the background, of the foregoing
historical overview that the constitutional protection of economic, social and cultural rights, to
which this dissertation now turns, shall be discussed
4.2.2. Economic, Social and Cultural Rights under the 1996 Constitution.
The ESC rights contained in the South African Bill of Rights include the rights dealing with
labour relations,219 environmental rights,219 property rights,219 the rights of access to adequate
housing,219 the rights of access to healthcare, sufficient food and water,219 the right to social
security,219 and the right to basic and on-going education.219 Because of the restrictions imposed
by space and the scope of this dissertation, the intention here is not to embark on a detailed
discussion of each of these rights. It may suffice, however, to note that the inclusion of these
rights in the 1996 Constitution of South Africa reflects the overriding desire of the drafters to fill
the gaping socio-economic gullies created by the peculiar historical circumstances of the people
lxxxvi of South Africa. This assertion is vindicated by the fact that most of these rights reflect specific
areas of basic needs or delivery of particular goods and services.219 The rights also tend to create
entitlements to material conditions of human welfare.219
This is in tandem with the view that “the purpose of the constitution is not merely to protect
extant rights, but also to empower disadvantaged persons and to contribute to the amelioration
of social evils such as poverty, illiteracy and homelessness.”219 These rights shall now be briefly
discussed. Rights dealing with labour relations include the right to fair labour practices, the right
to form, join and act together in trade unions, and the right to strike, all of which are primarily
directed at the relationship between employees and employers. According to J.C. Mubangizi, the
rights in section 23 are not directed at material state performance such as the provision of
facilities and the delivery of services, unlike in most other ESC rights, but are directed at a
relationship between private parties.219 This erudite scholar further observes that section 23,
therefore, has a direct horizontal effect unlike other ESC rights which mainly have vertical
application due to state involvement in the relevant power relationships.219
Two important components are comprised in the environmental rights provided in the
constitution.219 While section 24(a) provides for the right of everyone to an environment that is
not harmful to their health or well being, section 24 (b) places a duty on the state to prevent
pollution and other damage to the environment, and to promote conservation and sustainable
development. Mubangizi argues that while section 24(b) creates a “purely socio-economic right
(or third generation right),” section 24(a) has the character of both a first generation and a socio-
economic right. This according to him is because section 24(a) creates an individual right like
most first generation rights, whereas section 24(b) belongs to the category of collective rights,
which usually impose constitutional imperatives on the state to secure and provide services and
other social or economic amenities. It is submitted, with respect, that the foregoing over-
lxxxvii
generalization about the nature of the ESC rights vis-à-vis that of all civil and political rights
makes him to fall into the same error of fallacious categorization and wrongful description of the
nature and content of ESC rights and their civil and political counterparts, issues this dissertation
has already dealt with earlier on.219
The right of access to adequate housing219 and the right of access to health care services,
sufficient food and water, and social security219 have been identified by scholars as the most
significant ESC rights provisions in that Constitution.219 The importance of these rights is
grounded in the fact that they guarantee everyone the right of access not only to important
components of an adequate standard of living but also to things that are ordinarily regarded as
the basic necessities of life. These rights have also been described as the most controversial.
With respect to property rights, it is mainly section 25(5) that stands out as a socio-economic
right, requiring the state to implement measures aimed at achieving land redistribution, thereby
imposing a duty on the state to enhance equitable access to land. Section 29 provides for
everyone’s right to basic education. It is important to point out that the constitutional provisions
on the right of children219 and those guaranteeing the right of detained persons to be provided
with adequate accommodation, nutrition, reading materials and medical treatment219 are also
classified as ESC rights.
The importance attached, and the commitment, to the protection of ESC rights can be
immediately discerned from the unambiguous affirmation in the preamble that the Constitution
has been adopted so as to lay the foundation for social justice and the fundamental rights in
addition to improving the quality of life of all citizens and freeing the potentials of each person.
The cultural rights of South Africans are protected under sections 30 and 31 of the 1996
Constitution. Section 30 provides that everyone has the right to use the languages and participate
lxxxviii
in the cultural life of their choice, but no one exercising these rights may do so in a manner
inconsistent with any provision of the Bill of Rights. Section 31(1) further protects the rights of
the people to enjoy their culture, practice their religion and use their language as well as the
right to form, join and maintain cultural, religious and linguistic associations and other organs of
civil society.
Before this section is concluded, it should be stated that evidence abound to suggest that great
inspiration was drawn from the International Covenant on Economic, Social and Cultural Rights
by the drafters of the South African Constitution, 1996. This explains why most ESC rights
provisions therein are couched along the same lines as those of ICESCR. Article 2(1) of the
Covenant makes it obligatory for states to undertake steps to the maximum of their resources,
with a view to progressively realizing the rights by all appropriate means. This provision is
replicated substantially in the South African Constitution219 which makes it mandatory for the
state to take reasonable legislative and other measures within its available resources to achieve
the progressive realization of the rights. It can be noticed that the two instruments, ICESCR and
the 1996 South African Constitution, have a lot of similarities. For instance, the obligations
engendered by the two are substantially similar.219 It is submitted that among the constitutions of
the three jurisdictions being studied in this dissertation, the South African Constitution is the one
most closely modeled after the ICESCR in their ESC rights provisions. It is noteworthy,
however, that, ironically, South Africa was among the eight countries that abstained from voting
during the adoption of the Universal Declaration of Human Rights in 1948 by the United
Nations General Assembly.219 The South African situation becomes a more paradoxical irony
when one recalls that South Africa has not till the time of this research ratified the ICESCR.219
Both Nigeria and India have ratified the Covenant. It shall, however, be seen in subsequent
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sections of this study how committed each of these states is to the protection and enforcement of
the rights contained in the said Covenant.
4.3 Statutory Institutional Mechanisms for the Protection and Enforcement of ESC
Rights.
In South Africa, certain statutory institutional mechanisms are put in place for the protection
and enforcement of these rights. These include the so called Chapter 9 institutions established by
the 1996 Constitution to support constitutional democracy.219. Of these, the South African
Human Rights Commission and the Public Protector are particularly significant in the protection
and enforcement of the ESC rights.
4.3.1. The South African Human Rights Commission
The South African Human Rights Commission was established in 1995 in accordance with the
provisions of the 1993 Interim Constitution and the Human Rights Commission Act of 1994.219
With respect to the protection and enforcement of ESC rights, Section 184(3) of the 1996
Constitution imposes a duty on the Commission to require relevant State organs to furnish it
with information on measures they have taken towards the realization of the ESC rights in the
Bill of Rights concerning housing, health care, food, water, social security, education and the
environment. Generally, the Commission has the tasks to:
Develop an awareness of human rights among the people of South Africa, make recommendations to the State to improve the carrying out of human rights, undertake studies and report to Parliament on matters relating to human rights; and investigate complaints of violations of human rights and seek appropriate relief.219
The commissioners who run the Commission are appointed by the South African Parliament on
a seven-year term and can be reappointed for an additional term.
The Commission works with government, civil society and individuals within South Africa and
internationally. For instance, in determination of the importance the Commission attaches to
xc
ESC rights, it teamed up with the South African National NGO Coalition (SANGOCO) to
conduct national hearings on poverty in all the nine provinces of the country. The hearings
provided a forum for ordinary people to speak with dignity about their experiences of struggling
against poverty and to share their ideas with others. It also made it possible for government to
develop a policy framework that was relevant to the needs of the people.219 Also, in preparing
its 1997 – 1998 Economic and Social Rights Reports,219 the Commission collaborated with
research institutions which provided invaluable expertise and assisted the Commission to
popularize ESC rights.
It can be discerned from the foregoing that by virtue of the constitutional duty imposed on the
Commission,219 state organs (including the three arms of government) are under obligation to
make available to it information on their performance regarding the protection and enforcement
of ESC rights annually. What is not clear, however, is whether any state organ that fails to
furnish such information or that falls short of its expectations in the protection and enforcement
of these rights shall be sanctioned in any way. It is agreeable that the mere fact that there is a
mandatory constitutional obligation on state organs to make such information available to the
commission serves as a source of motivation to try to protect and enforce these rights. It is,
however, suggested that the commission should be allowed more powers than it presently enjoys
so that it can prosecute violators of ESC rights, be such violators private or public entities. It has
to be further noted that among the three jurisdictions under study in this dissertation, it is only
South Africa that has a national human rights commission with a direct constitutional mandate
to demand and monitor the compliance of state organs with the constitutional obligations to
respect, protect, promote and fulfill the ESC rights.
4.3.2 The Office of the Public Protector
xci During the multi-party negotiations that preceded South Africa’s first democratic elections in
1994, it was agreed that South Africa should have an ombudsman. Although the word
“ombudsman” is a gender–neutral loan word from Swedish, it was agreed that South Africa’s
ombudsman should be given a more descriptive name, hence the adoption of “Public Protector”,
capturing the whole essence of that office.
The Office of the Public Protector plays a more indirect, but no less important, role than the
South African Human Rights Commission.219 Established under section 182 of the Constitution
of South African,219 the Public Protector is usually appointed by the President on the
recommendation of the National Assembly for a non-renewable term of seven years. The Public
Protector is subject only to the Constitution and the law and is independent of government and
political party.
A close analysis of Section 182 which establishes the Office of the Public Protector shows that
its functions include the investigation of any improper conduct in state affairs or public
administration,219 reporting such conduct, and taking appropriate remedial actions. The improper
conduct may be in the form of abuse of power, unfair, capricious, discourteous or other
improper conduct, and undue delay, the violation of a human right, dishonesty or improper
dealings with respect to public money, improper enrichment as well as receipt of improper
advantage.219 It will, however, not investigate private acts by individuals as well as private
companies.
It can safely be argued that in performing those functions, the Public Protector not only curbs
human rights abuses resulting from state misconduct and public maladministration but also
protects and enforces constitutional rights including economic, social and cultural rights. It may,
however, be noted that given the fact that the Public Protector is appointed by the President, its
true independence and impartiality may be doubtful. Secondly, improper conduct by private
xcii
individuals or private companies may amount to a gross abuse of any of the ESC (or other)
rights, yet the Public Protector is not allowed to investigate, report or take action with respect to
such conduct. It is suggested that improper conduct by private individuals or companies be
included among what the Public Protector can investigate, especially when such a conduct
touches on any of the ESC rights of another.219
4.3.3 Commission for the Protection of the Rights of Cultural, Religious and Linguistic
Communities.
On July 22, 2004, the South African government officially launched this commission as a way
of demonstrating its preparedness to ensure the effective protection of the cultural rights of
South Africans. This was the last to be set up among the democratic institutions provided for
under Chapter 9 of the Constitution. It is submitted that the establishment of this commission
must be in response to the yearnings of a people whose history had had its unenviable toll on the
culture of the largely marginalized people. South Africa has had a complex, contested history,
marked by bitter racial and class divisions in which cultural identity has been the very object of
manipulation. It is hoped, therefore, that with the establishment of this commission, South
Africa is on its way towards full restoration of the people’s cultural rights. According to Sean
Morrow,219 the Commission embodies the vital constitutional principle of protection of the
marginalized or potentially-marginalised, and indeed perceives diversity as intrinsically
beneficial.
4.4 Periodic Reports of Compliance with the provisions of the ICESCR
South Africa signed the ICESCR but, at the time of this research, she had neither ratified nor
domesticated the Covenant. She does not, therefore, see herself as being under any strict
obligation to send the periodic reports required under section 16 of the Covenant. Of the three
xciii
jurisdictions being evaluated in this dissertation, South Africa is the only one that has failed
completely to honour her treaty obligation of sending periodic reports of her compliance with
the provisions of the ICESCR. However, South Africa signed the Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW), an ESC-rights-related instrument,
on 29 January, 1993 and ratified same on 15 December, 1995. It also ratified the Optional
Protocol to CEDAW in March 2005 and as at March 24, 2010, the state had submitted its 4th
periodic report to the CEDAW Committee in compliance with Art. 18(1) of the Convention.
4.5 Judicial Protection and Enforcement
It is in the area of judicial protection and enforcement of economic, social and cultural rights
that South Africa stands out among the countries, not only of Africa, but of the world and is
only comparable to India in terms of activism and creative interpretation of constitutional
provisions on these rights. According to Dannie Brand,219 courts can protect socio-economic
rights by playing two important roles. First, through their law-making powers of interpreting
legislation and developing the rules of the common law, and secondly, by adjudicating
constitutional and other challenges to state measures that are intended to advance those rights.
South African courts, particularly the Constitutional Court, have demonstrated their ability to
protect and enforce ESC rights through the latter of the two roles above. This section of the
dissertation sets out to examine some of the cases in which the courts demonstrated their resolve
to protect ESC rights and the rights sought to be protected and enforced through those cases. It
has to be stated that the following cases are not exhaustive of all the ESC rights issues decided
by South African courts. Importantly, the researcher did not come across any case that squarely
revolves around a cultural right, as most of the issues relating to culture are often taken to the
Commission for the Promotion aand Protection of the Rights of Cultural, Religious and
Linguistic Communities.219
xciv
4.5.1 Right of Access to Adequate Health Care Services and Emergency Medical
Treatment
The first case to be taken to the Constitutional Court of South Africa with a direct bearing on the
ESC right of everyone to have access to adequate health care services219 was Soobramoney v.
Minister of Health, Kwazulu-Natal219. This case involved an application for an order of court
directing a state hospital to provide the appellant with on-going dialysis treatment and
restraining the respondent from refusing him admission to the renal unit. The Constitutional
Court held that the applicant could not succeed in his claim and found that the denial of the
required treatment did not breach section 27(1) of the 1996 Constitution which provides for the
right of everyone to access to health care services, nor did it breach the section 27 (3) right to
emergency medical treatment. According to the court, Mr. Soobramoney’s case was not an
emergency, since an emergency occurs only when “a person suffers a sudden catastrophe which
calls for immediate medical attention”219 but that his case was “an ongoing state of affairs
resulting from a deterioration of --- (his) renal function which is incurable.”219 With respect to
section 27 (1) and (2), the Court found that while the state was under a duty to provide Mr.
Soobramoney with access to health care services, it had been established that it did not have
sufficient resources to provide dialysis treatment to all those in need of it.219 In the view of the
Court, it would only interfere in the decision of the hospital if it was irrational and taken in bad
faith.219
This decision has been variously criticized by commentators. Charles Ngwena and Rebecca
Cook, for instance, have argued that from the stand point of judicial precedence, Soobramoney
did not contribute much to the understanding of ESC rights, nor did it really “lay down any
guidelines that could be followed when interpreting socio-economic rights, so as to illuminate
and indigenise jurisprudence on socio-economic rights.”219 This dissertation respectfully shares
xcv this learned view and goes further to say that both the judicial reasoning and the approach by the
court are faulty.
The South African Constitutional Court had earlier on got an opportunity to adjudicate on the
right of access to adequate health care in a matter that had to do with the constitutional right of
prisoners to adequate medical treatment219. The case was Van Biljon v. Minister of Correctional
Services.219 In that case, the applicants who were HIV-infected persons sought inter alia, a
declaratory order that their right to adequate medical treatment entitled them to the provision of
expensive anti-retroviral medication. It was contended on their behalf, and upheld by the Court,
that lack of funds could not be an answer to a prisoner’s constitutional claim to adequate health
treatment as this right was guaranteed in the Bill of Rights. Although this case was decided in
the context of prisoners and their constitutional right to adequate medical treatment, it had very
significant results with respect to the right of everyone to adequate healthcare services.219 These
ramifications were reflected in the Constitutional Court’s later decision in Minister of Health
and Ors. v. Treatment Action Campaign & Ors.219 which was decided by the Constitutional
Court after a major land mark decision on the right of access to adequate housing.
4.5.2 Right of Access to Adequate Housing
The Soobramoney Case was followed by the case of Government of the Republic of South Africa
v. Grootboom & Ors,219 a case which leapt from the use of a rationality test219 to a
reasonableness test. This case was instituted under sections 26(1) to enforce everyone’s right of
access to adequate housing, and the children’s section 28 (1)(c) of the 1996 Constitution of
South Africa right of access to shelter, basic nutrition and health care respectively. In that case, a
group of adults and children had been rendered homeless as a result of eviction from their
informal dwelling situated on private land earmarked for low-cost housing. They applied for an
xcvi
order directing the local government to provide them with temporal shelter, adequate basic
nutrition, health care and other social services. The Constitutional Court held that the measures
of the provincial government to provide systematic housing over a period of time was
unreasonable, since no contingent plans were made for the temporary shelter of the homeless
destitute people. The Court held further that the State had failed to meet the obligations placed
on it by section 26 and declared that the State’s Housing Programme was inconsistent with
section 26(1) of the Constitution. This judgment has been applauded as one of the most eloquent
expression of support for the judicial enforcement of ESC rights, explicitly reaffirming the
justifiability of these rights.219 According to the Court, the Constitution of South Africa requires
the State to put in place a comprehensive and workable plan in order to meet its socio-economic
rights obligations, which obligations are defined by three key elements that have to be
considered separately: (a) “to take reasonable and other legislative measures”; (b) “to achieve
the progressive realisation of the rights”; and (c) “within available resources”.219 A reasonable
programme, in the opinion of the Court, must clearly allocate responsibilities and tasks to the
different spheres of government and ensure that the appropriate financial and human resources
are available219 and each sphere of government must accept responsibility for the
implementation of particular parts of a comprehensive and well-coordinated programme.219
The Constitutional Court, however, took a deferential approach by holding that the contours of
this programme will be left to the state to decide. ESC rights advocates, socio-economic
commentators and academics are united in their views that Grootboom heralded the dawn of a
glorious era in the judicial protection and enforcement of ESC rights in South Africa.
This view is highly supportable. It is, however, submitted that as far as the institutional
dimensions of vindicating ESC rights are concerned, the conceptual gains made in Grootboom
would pale in comparison to those ensuing from the Constitutional Court’s third ESC rights
xcvii
judgement in which it was required to address a renewed direct challenge to its institutional
competence to adjudicate on the socio-economic right of access to health facilities and adequate
health care. To that and other cases bothering on the violation of the right to health care services,
this dissertation now turns.
4.5.3 Right of Access to Adequate Health Care: The TAC Case
The Constitutional Court had yet another opportunity of pronouncing on the constitutional right
of access to adequate health care services in the celebrated case of Minister of Health and Ors.
v. Treatment Action Campaign & Ors.219 In that case, a non-governmental organization,
Treatment Action Campaign (TAC), in its efforts to force government to provide anti-retroviral
drugs for the combat of HIV/AIDS, specifically demanded that nevirapine, a drug that could
reduce by half the rate of mother-to-child transmission of HIV, be freely distributed to women
infected with the virus. The Court held that the state’s policy and measures in preventing
mother-to-child transmission of HIV (which restricted the availability of the drugs) was a breach
of the right of access to health care services under section 27 (1) of the Constitution and ordered
the state to provide the required medication and remedy its programme. In response to the
argument by the government that courts were constrained by the doctrine of separation of
powers from issuing anything but a declaration order in ESC rights cases, and that the trial High
Court “went too far”219 by ordering a specific government response to its finding of
unconstitutionality, the Constitutional Court powerfully reaffirmed the justiciability of ESC
rights and reiterated that the separation of powers underlying the 1996 Constitution is not
absolute.
The South African Constitutional Court’s decisions in Grootboom and TAC represent a great
milestone in the judicial enforcement of economic, social and cultural rights. South Africa has in
xcviii
effect been described by several economic, social and cultural rights commentators219 as one of
the most virile global reference points in the protection and enforcement of ESC rights.
However, these landmark decisions are not without some criticisms. The major areas of
criticism include the Constitutional Court’s rejection of the notion of minimum core obligations
adopted by the United Nations Committee on Economic, Social and Cultural Rights,219 the
Court’s failure to give content to the rights in sections 26(1) and 27(1) of the Constitution, the
Court’s failure to interrogate not only the effectiveness of the means chosen by the state to
realize those rights but also the sufficiency of resources, the failure to adequately question the
appropriateness of budgetary allocation and development of standards for examining budgetary
allocations, the Court’s approach to the rights of children in section 28(1) (c) of the Constitution,
the criticism that points to the weakness of the remedies granted by the Court in the two
decisions219 and the Courts failure to exercise a supervisory role in ensuring the execution of its
judgement.
According to Aarthi Belani,219 the rejection of the minimum core principle in preference for the
reasonableness approach is perplexing. He however condones the approach on two grounds.
First, reasonableness is a familiar principle of Anglo-jurisprudential origin and has acquired the
ratification of time; secondly, and more importantly, not specifically mentioning any minimum
content allows the courts the discretion to vary the minimum standards of compliance with these
rights when socio-economic circumstances change in future. He therefore concludes that the
Constitutional Court formally passed up the minimum core approach, first, to earn domestic
legitimacy and second, to reserve discretion to decide future ESC rights cases under the very
fact-dependent reasonableness rubric.
xcix
It is important to note that the Court rejected the minimum core approach because according to
it, “in the case,219 we do not have sufficient information to determine what would comprise the
minimum core obligation in the context of our constitution.”219 It is submitted that applying the
minimum core approach and thereby developing the content of what a violation of a particular
ESC right would look like is certainly within the powers and authority of the Constitutional
Court, given its constitutional obligation to consider international law219 in its interpretation of
the provisions of the Constitution.219 It is further submitted that even within the
“reasonableness” standard for evaluating governmental action or inaction with respect to the
fulfillment of ESC rights, the Court had ample room to state that the failure to fulfill the
minimum core obligation was prima facie evidence of unreasonableness.219 On the claim that
the “unreasonableness” approach affords the Court some measure of flexibility and discretion in
future ESC rights cases, it is submitted that even if the Court had established some minimum
core content for the rights, it still reserves the discretion to review upward the content in the
event of improved circumstances in the future.
On the approach of the Court to the rights of children under section 28(1) (c) of the Constitution,
this dissertation aligns itself with the views of several other learned writers219 that the Bill of
Rights provisions on this subject are absolute, clear and unambiguous, and are not constrained
by the availability or otherwise of resources. The Court’s refusal to apply these provisions,
especially in Grootbroom, is therefore curious. Section 28 (1) (c), it is submitted, is an express
manifestation of the minimum core obligations and is intended to ensure that children are
provided for without delay. The Constitutional Court also failed to exercise supervisory
jurisdiction over the execution of its decisions. This is one area where the Supreme Court of
India surpasses the Constitutional Court of South African and clearly stands out among the
courts in the jurisdictions under analysis in this dissertation. It is submitted that it is in the
c
interest of justice and that of successful litigants that court themselves should take responsibility
for the effectiveness of their orders.219
4.5.4 Right to Adequate Water Supply219
The judicial enforcement and protection of the rights was exemplified in the case of Residents of
Bon Vista Mansions v. Southern Metropolitan Local Council219 which concerned the
disconnection of water supply based on arrears in payment. The applicant brought an action for
an urgent interdict as a member and in the interest of Bon Vista Mansions residents, alleging
that the disconnection of residents’ water was as infringement of Section 27(1)(a) of the
Constitution. The court granted the application and ordered the respondents to restore the water
supply.219
4.5.5 Right of Access to Social Security and Assistance219
The Court pronounced on this right in the case of Khosa v. Minister of Social Development219 in
which legislation that excluded permanent residents and their children from access to social
assistance was successfully challenged and found to be inconsistent with constitutionally
protected rights of everyone to have access to social security and assistance as well as with
Section 9(3) which prohibits unfair discrimination.
4.6 The African Human Rights Enforcement System
South Africa acceded to the African Charter on Human and Peoples’ Rights on 9 July, 1996
with a declaration that consultation should take place between states parties on a number of
issues. The Charter has not been domesticated as required by section 231(4) of the Constitution.
It is, therefore, not applicable except in so far as can be permitted by section 233 of the
Constitution. This, in addition to the conducive judicial atmosphere provided by the
ci Constitution, may explain why South Africa does not seek redress through the wider African
regional and sub-regional human rights protection and enforcement systems.
4.7 Evaluating the South African Experience
From the foregoing analysis, one can safely assert that with respect to the protection and
enforcement of ESC rights, the South African experience is interestingly instructive. Several
ESC rights commentators are of the uniform opinion that when it comes to the constitutional
protection and enforcement of these rights, South Africa stands out as a reference point among
the jurisdictions of the world.219 No views can be more correct than those of these learned
authors. It is further submitted that South Africa owes its recorded success to a number of
factors.
First, the 1996 Constitution of South Africa makes adequate provisions for ESC rights by
including them, along with civil and political rights, without distinction in the Bill of Right.219
The rights, unlike in most other jurisdictions, including Nigeria and India, are made directly
justiciable under the Constitution.219 Secondly, the South African judiciary, emboldened by the
constitutional provisions, has been very courageously creative in the interpretation of the
provisions for the ESC rights. Of particular assistance to the judiciary is Section 7(2) of the
Constitution which enjoins the state to “respect, protect, promote and fulfill the rights in the Bill
of Rights.” The obligation to “respect” a right requires the State to refrain from interfering
directly or indirectly with the enjoyment of the right219 and has been applied by South African
Courts in a number of cases,219 preventing the eviction of citizens. The obligation to “protect”
which requires the state to take measures that prevent third parties from interfering with the right
is given effect through the enactment of statutes which protect people whose tenure of their
cii homes is insecure and who are vulnerable to eviction.219 The duties to “promote” and to “fulfill”
were also applied in both the Grootboom case and the TAC case.
It is also to the credit of the South African judiciary that in endorsing the justiciability of ESC
rights, it made it abundantly clear that the justiciability of the ESC rights does not offend against
the doctrine of separation of powers and that all the traditional arguments against justiciability
are of no moment since they are not peculiar to ESC rights adjudication and are, therefore, not
enough to warrant an outright non-justiciability of ESC rights.
The prominence accorded international law by the South African Constitution, especially, is
another factor responsible for the level of success recorded in the protection and enforcement of
ESC rights. The Constitutional Court is under an obligation to consider international law when
interpreting the Bill of Rights.219 Section 232 of the Constitution also provides that customary
international law is law in the Republic unless it is inconsistent with the Constitution or an Act
of Parliament. The Constitution of South Africa has been described as one which implements a
“qualification of the dualist approach”219 because it differentiates between “kinds” of
international agreements with different degrees of automaticity of incorporation into South
African law.219 However, the Constitution provides:
When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.219
The overall effect of the foregoing provisions is that a combination of the status of customary
international law under section 232 as “law in the Republic” with the interpretative role it plays,
it takes precedence over legislation and common law.219 It is also submitted that there may be
some treaties that may not bind South Africa,219 but may nevertheless be used as interpretative
guides, particularly “as evidence of a customary rule of international law” to fill a gap or to
resolve a statutory ambiguity. This makes it possible for the courts in South Africa to
ciii
successfully apply the provisions of some international conventions and agreements in
favourably resolving issues that touch on ESC rights.219
Another area that requires commendation is the role of non-state actors219 in fighting for the
protection and enforcement of ESC rights in South Africa.
The foregoing should, however, not be construed to mean that it has been all rosy for the
citizens of South in terms of the protection and enforcement of ESC rights. That jurisdiction has
its own shortcomings. For instance, up till the time of this research, South Africa has not yet
ratified the International Covenant on Economic, Social and Cultural Rights. This has continued
to attract criticisms from rights groups in and outside South Africa. Jean Du Plessis, Deputy
Director of COHRE once said in 2008, “More than 13 years have passed since South Africa
signed this essential international human rights treaty, yet South Africa still has not formally
ratified it.”219 Also, Dr. Jackie Dugard of CALS while condemning South Africa’s failure to
ratify the ICESCR while she has long ratified its counterpart, the ICCPR, said that this act
“reflects negatively on the country’s reputation as a progressive force in the realisation of
economic, social and cultural rights.219
Because of this non-ratification, South Africa cannot be asked to present its reports of
compliance with the provisions of the Covenant. Of the three jurisdictions under examination in
this research, South Africa is the only one that has not ratified the Covenant and has not
presented any periodic report of compliance therewith.
Apart from this, the apparent success recorded by the South African judiciary in the protection
and enforcement of ESC rights has received a plethora of criticisms from scholars and other
stakeholders. For instance, the Constitutional Court’s decisions in the Grootboom Case and the
TAC Case have been severally criticised for rejecting the notion of minimum core obligations,
civ for failing to give content to the rights adjudicated upon, for granting merely weak remedies,
and for failing to ensure proper execution of its judgments.219 While Aarthi Belani219 sees the
rejection of the minimum core approach as disturbing and justifies the preference of the
reasonableness approach on the ground that it leaves the court some measure of discretion and
flexibility in future, Marius Pierterse219 is of the opinion that though the notion of minimum core
is useful for understanding the nature of socio-economic obligations and provides a valuable
blue print for an entitlement- based approach to socio-economic rights, the rejection of the
minimum core arguments in Grootboom and TAC should not be read as preventing the
meaningful enforcement, in appropriate circumstances, of individual entitlements underlying
sections 26 and 27 of the Constitution. Regarding Belani’s view, it is submitted, with respect,
that a present specification of any minimum content or standard will not in any way prevent the
courts from upwardly reviewing the standards if, and when, the economic resources of the State
improves. It is herein contended, with great respect, that the reasons given by the Court for
rejecting the minimum core argument are porous, misleading and erroneous. Besides
misinterpreting the role played by minimum core obligations in international law, the Court’s
assertion that affirming the existence of minimum core goods and services, even in
circumstances where this would patently be impossible or lead to injustice, is faulty. It is
submitted that if a court finds that a minimum core obligation has been breached, such a court
would merely be required to insist that respondents justify the non-satisfaction of core needs and
to pronounce on the constitutional acceptability of such justification, in exactly the same manner
as it does in the event of a breach of civil and political rights.219
It is important to point out that the foregoing shortcomings notwithstanding, among the three
jurisdictions under comparison in this research, South Africa remains the most constitutionally
conducive environment for the protection of a broad range of ESC rights and has developed a
nuanced, sophisticated jurisprudence on the enforcement of these rights which remains an
cv
enviable reference point to most jurisdictions of the world, including the most developed
democracies of the West.
4.8 Conclusion
In this chapter, a modest attempt was made to present the experience of South Africa in the
protection and enforcement of ESC rights. The chapter started with a highly abridged overview
of the constitutional history of South Africa from 1910 to 1996, as well as how, and to what
extent each of these constitutions made provision for ESC rights. This section also presented
the rough and tortuous journey of ESC rights into the present constitution of South Africa. It
was found that among the constitutions of the various countries of the world, the present South
African constitution provides the most conducive environment for the protection and
enforcement of ESC rights. The chapter also examined the institutional mechanisms for the
protection and enforcement of these rights, such as the South African Human Rights
Commission and Office of the Public Protector. It was also found that the South African Human
Rights Commission is the only one among the human rights commissions of the three
jurisdictions under comparison in this study that is constitutionally mandated to require from
government agencies and departments reports of their performances in the protection and
enforcement of ESC rights. South Africa, at the time of this research, had not ratified the
International Covenant on Economic, Social and Cultural Rights. Probably because of this, she
had never sent any report of her compliance with her treaty obligations under, and as required
by, that covenant. The chapter also x-rayed the attitude of the South African judiciary towards
the protection and enforcement of these rights. It was found that South Africa enjoys a robust
and enviable jurisprudence in the area of judicial enforcement of ESC rights, parading landmark
decisions in this regard. This attribute makes that jurisdiction a global judicial reference point
and trail blazer. The chapter is then capped up with an evaluation of the South African
cvi
experience, noting that in spite of the foregoing positive observations, the jurisdiction still had
many large rooms for improvement.
CHAPTER FIVE
THE INDIAN EXPERIENCE
5.1 Introduction
In this chapter, the experience of India in the recognition, protection and enforcement of the
ESC rights shall be examined. India is a member of the Commonwealth of Nations, an
organisation comprising the United Kingdom and most of the countries that used to be part of
the British Empire, whether as colonies, protected or mandated territories. She shares this
historical affinity with both Nigeria and South Africa. In investigating the Indian experience, the
chapter will start with a highly abridged historical overview of the constitutionalisation of rights
in this jurisdiction. Then, an analysis of the provision for, and status of ESC rights under the
present constitution of India will be presented. This is followed by an examination of the
statutory institutional mechanisms for the protection of ESC rights, such as the National Human
Rights Commission of India. The chapter will also assess India’s satisfaction of her treaty
obligation to send periodic report of her compliance with the provisions of the ICESCR. Then a
section shall concern itself with an appraisal of the role of the Indian judiciary in the protection
and enforcement of these rights. The last but one section will be used in doing a general critical
evaluation of the Indian experience while the last section shall conclude the chapter. In each of
the sections, attempt shall be made to intermittently compare what obtains in India with what
obtains in each of the other two jurisdictions being studied in this dissertation.
5.2 A Brief Historical Overview of Constitutional Rights in India
cvii
As is applicable to most jurisdictions of the world, the development of constitutional rights in
India was inspired by historical documents such as England’s Bill of Rights, the United States’
Bill of Rights, and France’s Declaration of the Rights of Man.219 India was, like Nigeria, a
British colony. In 1928, an All-Parties Conference of representatives from Indian political
parties proposed constitutional reforms for India and an 11-man committee led by Motilal Nehru
was constituted for that purposed.219 In 1931, the Indian National Congress adopted resolutions
defining as well as committing itself to the defence of fundamental civil rights, including socio-
economic rights such as minimum wage, the abolition of untouchability and serfdom. Upon
attaining independence on the 15th day of August 1947, the task of developing a constitution
for India was undertaken by the Constituent Assembly of India through its Constitution Drafting
Committee formulating the precise language of fundamental rights. Making all the rights
justiciable was initially favoured by the Committee. They, however, later dropped that idea and
came up with two groups of rights, comprising civil and political as well as ESC rights. It,
however, became another subject of debate which right was to go where.219 The ESC rights
found themselves in the group described as Directive Principles of State Policy (DPSP). Some
of the members suggested that DPSP should become justiciable after a period of time, otherwise
they would remain mere pious wishes219. They never became justifiable. The Constitution
became effective from 26 January, 1950 and remains till date the longest written constitution of
any sovereign country in the world, containing 450 articles in 22 parts, 12 schedules and 94
amendments for a total of 117,369 words in the English Language.219 It recognizes as
fundamental rights many of the individual rights that comprise the International Covenant on
Civil and Political Rights. These rights which are described as fundamental rights are contained
in Part III of the Constitution, and they include the right to life,219 right to equality,219 right to
freedom of speech and expression,219 and right to seek judicial remedies before the courts.219
cviii Justice S. Muralidhar remarks that a significant feature of the Constitution of India is the
principle of checks and balances by which every organ of state is controlled by and is
accountable to the constitution and the rule of law.219 According to this eminent jurist, the
validity of the decisions of government in any aspect of governance can be challenged in
courts219 and writs of mandamus are available to enforce the state’s obligations. Laws made by
the legislature can also be struck down by these courts if found contrary to the provisions of the
Constitution. These broad powers of judicial review, combined with far-reaching legislation,
have proved critical in the judicial enforcement of ESC rights and it is to this category of rights
that this dissertation now turns.
5.3 Economic, Social and Cultural Rights under the Indian Constitution
The Constitution of India provides for ESC rights in Part IV headed, “Directive Principles of
State Policy” (DPSP). It has been noted219 that many of the provisions of Part IV of the
Constitution correspond to the provisions of the International Covenant on Economic, Social
and Cultural Rights (ICESCR). The rights contained in this Part include the right to free legal
aid,219 the right to education,219 the right to health,219 the right to minimum wages of workers,219
right to just and humane conditions of work and maternity,219 right to work.219 Article 37 of the
Constitution declares that the right provided under the DPSP shall not be enforceable by any
court, but the principles therein laid down are nevertheless fundamental in the governance of the
country and it shall be the duty of the state to apply these principles.
It is clear from the above provision that the bar to justiciability of the rights under the DPSP is
expressly spelt out by the Constitution itself and that the apparent distinction usually drawn by
scholars between civil and political rights and ESC rights holds good for the distinction drawn in
the Indian Constitution between Fundamental Rights and Directive Principles of State Policy.219
The DPSPs are directions given to the central and state governments to guide the establishment
cix
of a just society in India. Theorised as a yardstick in the hands of the people to measure the
performance of governments, they act as a check on the government.
The DPSPs are seen to be so important to the establishment of a just society that subsequent
amendments to the Constitution have emphasized the need to give priority to the DPSPs over the
Fundamental Rights and laws made to effect this purpose shall not be invalid on the grounds
only that they take away the fundamental rights.219 It is also the position of the law that in the
event of a conflict between Fundamental Rights and Directive Principles, if the latter aim at
promoting the larger interest of society, the courts will have to uphold the case in favour of
Directive Principles.219 It is instructive to note that the 2002 86th Amendment to the
Constitution219 created Article 21-A of the Constitution which provides for free and compulsory
education to all children aged 6 to 14 years.219 It should be noted, however, that the Constitution
provides for the protection of the people’s cultural right as a fundamental right. This is
guaranteed under Article 29. Subsection 1 of that article guarantees the right of any section of
the citizens residing in any part of the country having a distinct language, script, or cultures of
its own to conserve the same while subsection 2 prohibits any form of discrimination based only
on religion, race, caste, language or any of them in the matter of admission to State or State-
aided educational institutions. Specifically, Article 30 prohibits discrimination against the
minorities in all educational matters.219
In concluding this section, it is submitted that although ESC rights are classified as Directive
Principles of State Policy and made expressly non-justiciable under the Indian Constitution, they
enjoy a constitutional climate which can be exploited by an adventurous bar and a courageous
judiciary for the enforcement of these rights.
5.4 Statutory Institutional Mechanisms for the Protection and Enforcement of the ESC
Rights.
cx The major institutional mechanism for the protection and enforcement of ESC rights in India
studied in this dissertation is the National Human Rights Commission of India (NHRCI). This
Commission was established on October 12, 1993219 through an Act of Parliament219 in response
to the Paris Principles.219 The Commission is granted wide powers and functions under section
12 of the Act, including, among others; to inquire into violations of human rights, or negligence
in the prevention of such violation by a public servant;219 to review the safeguards provided by
or under the constitution or any other law for the time being in force for the protection of human
rights and recommend measures for their effective implementation;219 to study treaties and other
international instruments on human rights and make recommendations for their effective
implementation;219 to take suo motu action, if required, in a case where the victim cannot access
the court; and such other functions it may consider necessary for the protection of human
rights.219 The definition of “human rights” as provided under the Act219 presupposes that ESC
rights that are enforceable by the courts in India are also part of the functions of the
Commission. It remains to be seen how effectively the Commission has protected these rights
even in the face of the fact that studying treaties and other international instruments on human
rights and making recommendations for their effective implementation are among the functions
of the Commission. According to Manoj Kumar Sinha,219 the Indian Human Rights Commission
adopts a proactive approach in the enforcement and the protection of ESC rights by rendering
annual reports wherein it identifies major impediments to the enjoyment of these rights by
Indian citizens and makes recommendations for remedying the situation. It has been noted that
the Commission played a very important role in ensuring the materialisation of free and
compulsory education for all children until they complete fourteen years219 and that through its
persistent efforts, government amended its service rules to prohibit the employment of children
by government. The Commission has also been credited with securing judicial enforcement of
the rights to shelter,219 food,219 the right to water supply,219 as well as right against bonded
cxi labour. The Commission firmly believes that all human rights are universal, indivisible,
interrelated and interdependent. Even the Supreme Court of India refers cases to the NHRC.219
The active involvement of the Indian National Human Rights Commission in the protection and
enforcement of ESC rights is not in doubt. One interesting strategy employed by the
Commission is its collaboration with Non-Governmental Organisations (NGOs).
It is submitted, however, that a number of features of the enabling Act work against the effective
exercise of its functions. For instance, members of the Commission may not be as independent-
minded as they ought to be because they are usually appointed by the President on the advice of
an Appointments Committee.219 The Commission is also not financially independent as the
executive makes the funds for running the Commission available as “it may think fit” and pays
the salaries of the staff. The police and other investigating staff are provided by government and
are heavily drawn from the intelligence bureau. This makes independent inquiry into allegations
involving public authorities unreliable.219 Importantly, and regrettably too, the Commission has
no power to prosecute.219 Where inquiries reveal cases of real violation, the Commission is
limited to merely advising the government to prosecute the concerned violators or grant relief to
the victim.
In comparison with the South African Human Rights Commission, and unlike that one, the
National Human Rights Commission of India does not have an express constitutional mandate to
consider ESC rights. The efforts so far made by the Commission in considering ESC rights were
made possible by a generous interpretation of the term “human rights” as defined by section 2
(1) of the PHRA as well as by referrals from the Supreme Court of India, particularly on public
interest litigation cases.219 However, the two, and also that of Nigeria, as will be shown later in
this research, share a number of deficiencies in common, albeit at varying degrees. They are, at
various levels, financially and operationally dependent on the government of the day.
cxii
It is submitted that this absence or near- absence of financial, administrative, and operational
autonomy of the Commissions in the three jurisdictions raises doubts and skepticism over the
independence of the Commissions and their ability to carry-out their statutory functions
unhindered and uninfluenced. From the foregoing analysis, it is clear that the protection and
enforcement of ESC rights through the domestic institutional mechanism discussed above are
beset with a myriad of shortcomings. This study will now take a look at the effect of an external
monitoring mechanism on India’s protection and enforcement of ESC rights. One of the
international agencies imbued with the power to exercise this important oversight function is the
United Nations Committee on Economic, Social and Cultural Rights to which the attention of
this study now turns.
5.5 Periodic Reports of Compliance with the Provisions of the ICESCR
As stated earlier in this study, State parties to the ICESCR undertake to submit, periodically,
reports on the measures which they have taken and the progress they have made in achieving the
observance of the rights provided in the Covenant.219 The function of monitoring the compliance
of State parties with their treaty obligations under the Covenant is vested in the Committee on
Economic, Social and Cultural Rights. India is a party to the Covenant and has so far submitted
five periodic reports to the Committee. The Committee has in turn studied the reports,219 and has
come up with its own report and observations on the state of India’s compliance with the
provisions of the Covenant. An analysis of the report and observations of the Committee after
India’s Joint 2nd to 5th Periodic Report is both instructive and revealing. For want of space, not
all the rights covered in the report and observations shall be analysed in this study.219 Suffice it
to say, however, that the Committee was not impressed by the level of compliance of India with
cxiii the provisions of the Covenant, even in the face of the acknowledged outstanding efforts of the
judiciary.
5.5.1 On Legal Matters and Lack of Support for Human Rights Institutions
The Committee noted with regret that despite the significant role played by the Supreme Court
of India in interpreting the Constitution with a view to achieving the justiciability of ESC rights,
the Covenant is not given its full effect in the legal system of India due to the absence of
relevant domestic legislation and non-implementation of court decisions.219 The Committee also
noted with regret that the state sees the realization of these rights as being entirely progressive in
nature and that there were no effective mechanisms to co-ordinate and ensure, at all levels,
administrative and policy rights relating to these rights.219 It also noted, with concern, that the
Indian National Human Rights Commission and the states’ human rights commissions were not
adequately supported in terms of finances and other resources.219
5.5.2. On Health Care, Housing and Water Supply
The Committee noted with concern that the universal healthcare scheme in the state party fell
short of providing for universal coverage. It also observed that the quality and availability of
healthcare services provided under the scheme had been adversely affected by the large scale
privatization of healthcare services in the state party, impacting particularly on the poorest
sections of the population.219 It was also concerned that healthcare expenditure remained
exceptionally low, thereby denying a significant population access to basic healthcare
services.219
The Committee was also worried about the lack of a national housing policy to address,
particularly, the needs of the disadvantaged and marginalized individuals and groups,219 noting,
in addition, the usual lack of adequate consultations, compensation, and other forms of legal
redress for persons affected by displacement by forced evictions.219 With respect to access to
cxiv
water, the Committee observed an acute shortage of access to safe drinking water and the
presence of heavy metals in ground water.219
5.5.3. On Education and Employment
The Committee expressed great regret and disappointment that in spite of the efforts to achieve
universal primary education,219 there still existed a wide disparity between enrolment and
dropout rates in primary schools,219 pointing out that there was generally low quality of
education in public schools which were also under-funded.219 It noted further that adult illiteracy
rates were high and that neither human rights219 nor sex education219 was part of the school
curricular.
In the area of employment, the Committee observed that it was ironical that the rapid and
sustained economic growth in the State party had not been translated into employment growth219
noting that the high and increasing rate of unemployment and underemployment persisted in the
State party in spite of the National and Rural Employment Guarantee Act enacted in 2006.219
The Committee also indicted the Indian government in the areas of discrimination,219 bonded
child labour,219 minimum wage,219 trade-unionism,219 women’s rights abuses,219 human
trafficking,219 and state’s role in development and aid assistance,219 as well as prison
conditions.219
The Committee then made a host of suggestions aimed at improving the State party’s level of
performance of its treaty obligation of protecting and enforcing the ESC rights contained in the
Covenant. The Committee suggested, among other things, that India should take all the
necessary legal measures to give full effect to the Covenant in domestic law and make the
Covenant directly applicable in domestic courts. It also suggested that the State should take
effective measures to increase the awareness of the rights in the ICESCR among the public and
cxv enhance the effectiveness of the National Human Rights Commission through adequate
budgetary allocation. It also advocated the creation of Human Rights Courts whose jurisdiction
should extend to trying violations of economic, social and cultural rights.
From the foregoing report, it is not in doubt that the efforts of the Indian government,
particularly the executive and the legislative arms, to protect and enforce ESC rights through
administrative policies and programmes as well as through legislative enactments, have been
less than satisfactory. It has to be noted, however, that India is the only one out of the three
jurisdictions being studied that has satisfactorily lived up to its treaty obligation of periodic
reports219 to the Committee on Economic, Social and Cultural Rights of the United Nations.
While India and Nigeria have ratified but not domesticated the Covenant, South Africa has
neither ratified nor domesticated it. It is submitted that the fact that India has ratified the
Covenant and is up-to-date in its reporting obligation, there under presupposes that she is ready
to lay bare for international assessment and criticism, her level of performance in the protection
and enforcement of ESC rights. The same may be said of Nigeria, although to a relatively less
degree. The reverse is the case with respect to South Africa. This comparatively ranks India
higher than both Nigeria and South Africa with respect to their reporting obligation under the
ICESCR.
From this report, one arm of the Indian government that received satisfactory commendation in
the area of protection and enforcement of ESC rights is the judiciary. It has been remarked that
courts are the most effective avenues for the protection and enforcement of human rights.219 To
what extent can one say that Indian courts are effective for the protection and enforcement of
ESC rights? What strategies do the courts employ in carrying out this function? These and
many other questions shall be addressed in the next section of this dissertation, as the role of the
Indian judiciary in the protection and enforcement of ESC rights is on focus.
cxvi
5.6. Judicial Protection and Enforcement of Economic, Social and
Cultural Rights
The ESC rights provided under the Indian Constitution are expressly described as “Directive
Principles of State Policy” and are contained in Part IV of the said Constitution. Article 37 of
the Constitution provides that these rights:
Shall not be enforceable in any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.219
Initially, Indian courts were reluctant to accord Directive Principles of State Policies an equal
status with the fundamental rights. When the battle for primacy between these two sets of rights
first came up before the Supreme Court, the court unequivocally asserted that the Directive
Principles had to conform to and run subsidiary to the chapter on Fundamental Rights.219
However, later in the Fundamental Rights case,219 the Court veered round to the view that what
was fundamental in the governance of the country could be no less significant than what was
fundamental in the life of the individual. In fact, one of the judges in that case boldly stated, “In
building a just social order, it is sometimes imperative that the fundamental rights should be
subordinated to directive principles’’.219 This view, that the directive principles of state policies
and fundamental rights are complementary, indivisible and equal prepared the way for the flurry
of highly creative interpretational ability and unrivalled judicial activism in the protection and
enforcement of ESC rights in India that followed. It is humbly submitted that the Indian
judiciary, especially the Supreme Court of India, is arguably one of the most courageous in the
world in the area of judicial enforcement of ESC rights as shall be shown presently. An
assessment of the attitude of Indian courts in the enforcement of selected individual ESC rights
is herein presented.
5.6.1. Right to Health.
cxvii Article 47 of the Indian Constitution, a Directive Principle of State Policy, provides for the duty
of the state to provide for and improve public health. This principle got tested in the case of
Paschim Banga Khet Mazdoor Samaty v. State of Bengal,219 where an agricultural labourer
whose condition after a fall from a running train worsened considerably when as many as seven
government hospitals refused to admit him as they had no vacant beds. Not only did the
Supreme Court declare the right to health a fundamental right and order that the farmer be
compensated by the West Bengal Government, it also directed the government to formulate a
detailed blue-print for primary health care with particular reference to the treatment of patients
during an emergency. The court acknowledged that financial resources were needed for such a
scheme but stated:
But at the same time, it cannot be ignored that it is the constitutional obligation of the state to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done.
The court came to this conclusion by relying on Article 21219 (right to life) which it interpreted
as imposing an obligation on the state to safeguard the life of every person. It has to be noted
that this was a public interest litigation219 case and it concerned the State of Bengal which was
the only government represented. However the court applied its order to other states and to the
government of the federation. In comparison with the South African case of Soobramoney,
Paschim stands tall and adorable, with only the South African TAC case as its near equal.
In another public interest case, Consumer Education and Research Centre v. Union of India,219
the court, noticing that long years of exposure to asbestos was harmful to the health of the
workers in that industry and could result in debilitating asbestosis, mandated compulsory health
insurance for every worker as enforcement of the worker’s fundamental right to health. The
court also had occasion to examine the quality of drugs and medicines being marketed in the
country and even ask that some of them be banned.219 The Supreme Court has also had occasion
in a number of public interest cases,219 to uphold the right of mentally ill persons to adequate
cxviii
health care. The list of cases where the right to health has been upheld by the courts in India is
too long. In fact, it has been remarked219 that the right to health has been the least difficult in
terms of justiciability for the Supreme Court of India. Even though the court was generous in the
protection of the right to health, it would not allow unreasonable demands by citizens. That was
why it had to sound a note of caution when government employees protested against the
reduction of their entitlements to medical care and said “No state or country can have unlimited
resources to spend on any of its projects. That is why it only approves its projects to the extent it
is feasible.”219
5.6.2 Right to Education.
The enforcement of the right to education is one other area where the Indian Supreme Court
boldly demonstrated unrivalled activism. Article 45 of the Constitution, a Directive Principle of
State Policy, which corresponds substantially to Article 13(1) of the International Covenant on
Economic, Social and Cultural Rights, provides for free and compulsory education for all
children until they complete the age of fourteen years. The Supreme Court fired the first salvo
with respect to this right in the case of Mohini Jain v. State of Karnataka219 where it held that
every citizen had a right to education which the state had to ensure. The correctness of this
decision came up for examination in Unnikrishnan J.P. v. State of Andhra Pradesh219 where
private medical and engineering colleges challenged state legislation regulating the charging of
“capitation” fees from students seeking admission. Proprietors of the colleges were seeking the
enforcement of their right to business. The court expressly denied this claim. Another question
posed in this matter was whether the passage of 44 years since the making of the Indian
Constitution had converted the obligation of the state under Article 45 (a Directive Principle of
State Policy) into a fundamental right. The Court answered in the affirmative and explained that
cxix
the right to education is implicit and flows from the right to life guaranteed under Article 21219
and a child has a fundamental right to education. It clarified:
The right to education further means that a citizen has the right to call upon the state to provide educational facilities to him within the limits of its economic capacity and development. By saying so, we are not transferring Article 41 from Part IV to Part III; we are merely relying upon Article 41 to illustrate the content of the right to education flowing from Article 21.219
Warning that not each and every obligation referred to in Part IV gets automatically included
within the provision of Article 21, the Court stated that it held the right to be implicit in the right
to life because of its inherent fundamental importance. It is submitted that this is judicial
activism par excellence. It is further submitted that by this decision, and its clarification, the
Indian Supreme Court seems to agree to what this dissertation had earlier expressed: that the
issue of justiciability of ESC rights should be approached on a case-by-case basis, paying
adequate attention to the merits of each case. It is also submitted that the decision in
Unnikrishnan is significant in more ways than one. First, it established primary education as the
minimum core of the right to education, as was implicit in the wording of Article 45 which sets
an outer time limit for the progressive realization of the right. Secondly, it prompted a
constitutional amendment219 that formally acknowledged the transformation of this right from
directive principle of state policy to an enforceable fundamental right. It is also significant for its
impact on judicial decision making where creativity and innovation are key determinants to
effective intervention. In fact, it was applied by the Court subsequently in formulating broad
parameters for compliance by government in the matter of eradication of child labour.219
5.6.3 Right to Food.
In the area of right to food, the Indian Supreme Court has also made tremendous enforcement
progress after initial reluctance. One landmark case in this regard was People’s Union for Civil
Liberties v. Union of India219 a public interest litigation case which confronted the paradox of
cxx
food scarcity while the states’ silos overflowed with food grains in the midst of starvation. The
Court identified the area of immediate concern, ordering government
To see that food is provided to the aged, infirm, disabled, destitute men, destitute women who are in danger of starvation, pregnant and lactating women and destitute children, especially in cases where they or members of their family do not have sufficient funds to provide food for them.
The Court also directed the state to reopen and make functional all Public Distribution System
(PDS) shops, identify the most vulnerable states where hunger and starvation were widespread
as well as families below the poverty line, in a time-bound schedule. It is submitted that this,
again, reflects and corresponds to the minimum core obligation enjoined by the United Nations
Committee on Economic, Social and Cultural Rights219 and which was argued in, but rejected
by, the South African Constitutional Court.219
5.6.4 Right to Work.
It is with respect to the enforcement of this right that the Indian Supreme Court has been most
inconsistent in its position. The Constitution provides that the state shall, within the limit of its
economic capacity and development, make effective provision for securing the right to work,219
promote the welfare of the people219 and endeavour to secure a living wage and a decent
standard of life to all workers.
In the case of large-scale abolition of posts of village officers219 in the Tamil Nadu, the officers
contended that such abolition fell foul of the DPSP, but the Court rejected the contention.219
However, in the case of Daily Rated Casual Labour Employed under P & T Department v.
Union of India219 where the issue was the regularisation of the services of a large number of
casual workers, the Court did not hesitate to invoke the potency of Directive Principles of State
cxxi Policy to direct such regularization.219 Also, in Bandhau Mukti Morcha v. Union of India,219
public interest litigation by an NGO, the deplorable condition of bonded labourers in a quarry
was highlighted. A host of protective and welfare-oriented legislation219 were being flagrantly
flouted. The Court gave extensive directions to the State Government to enable it discharge its
constitutional duties to the bonded labourers, and said:
The right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Article 41 and 42 and at least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no state has the right to take any action which will deprive a person of the enjoyment of these basic essentials.219
In what can be described as the best of interpretative creativity in judicial activism, the Court in
Vishaka v. State of Rajasthan,219 invoked the rights to equality,219 non-discrimination,219
freedom to carry on profession, calling,219 and life,219 as well as Directive Principle of State
Policy provisions in Article 42 and the Convention on the Elimination of All Forms of
Discrimination Against Women219, to condemn and adjudicate on sexual harassment faced by
women in the workplace. This was an area where there was, in fact, no statute that provided for
the right of the affected women to seek redress.
The right of workmen to be heard at the stage of the winding up of a company was upheld by
the Court.219 However, the Court gave a contrary decision in the later case of Balco Employees
Union v. Union of India219 in which it was called upon to examine the constitutional validity of
the decision of the central government to divest itself of its shareholding and control in a certain
public sector engaged in the manufacture of aluminium on grounds that the workmen were not
consulted before the decision was taken, and that the workmen would lose the constitutional
protection of their rights as government employees. The Court held that the process of
cxxii
disinvestment was a policy decision making involving complex economic factors and that it was
not for the Court to examine whether it was desirable or not. It is submitted, with respect, that
relying on the premise that the courts lack legitimacy and competence in the area of policy
decisions of state concerning ESC rights219 is contradicted by the court’s decisions in certain
other public interest litigation cases which suggest otherwise.219 It would appear that in some of
these cases, especially in the various public interest litigation environmental cases,219 the Court
would intervene and defer to executive policy when it favoured government.
5.6.5. Right to Shelter.
The right to shelter does not enjoy any express provision and expression under the Directive
Principles of State Policy. However, this right which forms part of the right to an adequate
standard of living under Article 11 of ICESCR, has been held by the Indian courts as forming
part of Article 21219 of the Indian Constitution. In fact, in Shanti Star Builders v. Narayan K.
Totame219 the Court went as far as to say, “The right to life … would take within its sweep the
right to food… and a reasonable accommodation.” Also, in Ahmedabad Municipal Corporation
v. Nawab Khan Gulab Khan,219 a case that challenged the eviction of encroachers in a busy
locality of Ahmedabad, the Court in a community interpretation of Articles 38, 39 and 46 of the
Indian Constitution, held:
Although no person has a right to encroach and erect structures or otherwise on footpaths, pavements or public structures or any other place required or earmarked for a public purpose, the state has the constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for a settlement of life and erection of shelter over their heads to make the right to life meaningful.219
It should be noted, however, that earlier cases showed the Court’s reluctance to recognize any
absolute right of the individual to shelter. In Olga Tellis v. Bombay Municipal Corporation,219
the Court held that the right to life included the right to livelihood, but went on to reject the
contention by the petitioners that since they would be deprived of their livelihood if they were
cxxiii
evicted from their slum and present dwellings, their eviction would be tantamount to deprivation
of their life and hence unconstitutional. It is, however, heart-warming to note that the Court held
that the petitioners had a right to be warned of their impending eviction despite the illegality of
their occupancy on the basis that their right to livelihood, which is an aspect of the right to life,
was infringed.
This dictum was followed in Municipal Corporation of Delhi v. Gurnam Kalir,219 as well as in
Sodan Singh v. NDMC.219 It is noted that those earlier cases failed to account for the socio-
economic compulsions that gave rise to pavement dwellings and restricted their examination of
the problem to a purely statutory point of view, rather than the human rights perspective. It is
submitted that the later decisions of the Court took into account the human rights aspect and are,
therefore, preferred.
From the foregoing analysis, it can be safely asserted that in spite of the obvious constitutional
limitations imposed on the ESC rights in India,219 the Indian judiciary stands out as a bold and
resolute avenue for the protection and enforcement of these rights. A number of factors account
for the tremendous success recorded by the Indian judiciary in this regard. What are these
factors and what roles did they play in the effort to protect and enforce economic, social and
cultural rights in India? In the next section of this chapter, an attempt is made at providing
answers to these questions.
5.6.6. Strategies for India’s Judicial Success
(a) The Doctrine of Substantive Due Process and Judicial Review.
Judicial review of executive actions as well as of legislation and judicial and quasi-judicial
orders is recognized as part of the basic structure of the Indian Constitution which cannot be
taken away even by an amendment of the Constitution.219 It has also been vigorously asserted
cxxiv that the doctrine of substantive due process permeates the entire Part III of the Constitution,
comprising the Fundamental Rights, so that an executive, legislative or quasi-judicial action
would have to satisfy the ‘‘just, fair, and reasonable’’ test.219 The Supreme Court of India also
has the final word in the interpretation of the Constitution and its orders, being law, are binding
and enforceable by all authorities – executive, legislative and judicial.219 The combined effect of
the foregoing is that the Supreme Court in particular, and courts generally, can invoke its powers
of judicial review to review executive actions or policy decisions, legislative enactments or even
judicial or quasi-judicial orders and weigh them on the scale of compliance with the doctrine of
substantive due process and to ensure that such actions, decisions or legislation are intended to
achieve the objective of Articles 39(b) and (c) of the Constitution. Where the legislation is an
amendment to the Constitution, the courts can review it to see whether it violates the basic
structure of the Constitution.219 The implication of this is that actions, decisions, legislation or
orders that affect ESC rights can and do thereby find their ways into the Court for adjudication.
Through creative interpretation, the Court has asserted that the doctrine of substantive due
process is integral to the chapter on Fundamental Rights. Thus, the negative right to life under
Article 21 that restrained the state from denying a person’s right to life and liberty except
according to procedures established by law was bolstered by the further requirement that such
law had to satisfy the requirement of being “just, fair and reasonable.”219 It should be noted,
however, that it took nearly 30 years after the commencement of the Constitution before the
courts could acknowledge that the fundamental rights chapter implicitly acknowledges the right
to substantive due process. In A.K. Gopalan v. State of Madras,219 a 1950 case, it was held that
as long as there was a law that was validly made, the court could not examine its fairness or
reasonableness. However, later in Maneka Gandhi v. Union of India,219 the Court held that any
procedure prescribed by law for derogation from any of the fundamental rights must not be
arbitrary, unfair or unreasonable.
cxxv
Indian courts have exploited the great benefits of the doctrine of substantive due process and the
power of judicial review to give protection and enforcement to a plethora of ESC rights. It is
herein noted that among the three jurisdictions, within the purview of this study, India stands out
in this regard. It is suggested that the Indian approach be adopted not only by the other two
jurisdictions, but by all other jurisdictions for the effective judicial protection and enforcement
of ESC rights
(b) Expanded Interpretation of the Scope and Content of the Right to Life.
Another contributory factor to the success story of India in the judicial protection and
enforcement of the ESC rights is the expanded judicial interpretation of the constitutional right
to life. The Indian Supreme Court, through unprecedented boldness and creativity in judicial
interpretation, expanded the frontiers of the right to life to such an elastic level as to include a
bundle of other incidental and integral rights, many of them in the nature of ESC rights. In
Francis Coralie Mullin v. The Administrator of Union Territory of India219 for example, the
Supreme Court declared:
The right to life includes the right to live with human dignity and all that goes with it namely, the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
Muralidha219 notes that this expanded notion of the right to life enabled the Court, in its Public
Interest Litigation jurisdiction, to overcome objections on grounds of justiciability to its
adjudicating the enforceability of ESC rights. The Indian case law is replete with countless
instances, especially in Public Interest Litigation, where the generous creativity of the Indian
Supreme Court was demonstrated in the interpretation of the right to life and some other
fundamental rights.219
cxxvi Again, this creative innovation stands the Indian judiciary out among the three jurisdictions
being studied in this research. It is submitted that it takes a courageous activist judiciary to
achieve the feat recorded by India. The South African judiciary is certainly very vibrant but may
not be adjudged as bold and creative, while the Nigerian judiciary is light years away. It is
suggested that other jurisdictions should borrow the Indian leaf.
(c) Public Interest Litigation (PIL).
Public Interest Litigation in India was a product of historical circumstances. Just like in most
colonised third world countries, the attainment of independence by India came with it great
expectations of socio-economic wellbeing and better conditions of life for the Indian people.
The post-independence Constitution adequately captured these expectations by giving a pride of
place to the new philosophy of human rights and to the obligations of the state to provide a
social and economic structure which promised human welfare, happiness and development.219
However, these raised hopes were dashed by bad leadership. Assertive citizens and activist
groups started raising demands for improved quality of life for the people of India and a redress
of the wrongs committed by previous uncaring administrations. Social restiveness and
frustration ensued, leading to the declaration of an internal emergency between 1975 and 1977
with the attendant flagrant violations of the basic rights of life and liberty. This emergency and
its aftermaths contributed significantly to the change in the judiciary’s perception of its role in
society and in the working of the constitution. The post-emergency period which did not
experience any dramatic change in the social imbalances and executive excesses provided a
veritable environment for the judiciary to redeem itself as a protector and enforcer of the rule of
law.219
Indian judges rose up to this challenge and PIL was the tool to be used in achieving this
objective.219 Public Interest Litigation has been defined as an action instituted by an individual
cxxvii
or a social action group for the enforcement of the constitutional or legal rights of the general
public or of an identifiable class of persons within the domain of public law.219 In India, PIL was
mostly a judge-led and judge-dominated movement and its uniqueness stemmed from the fact
that it acknowledged that a majority of the Indian population could not have access to the justice
system as a result of their social, economic and other disabilities. To bring justice to the door
step of the common man and the disadvantaged groups, the insurmountable walls of procedure
were dismantled and suddenly the doors of the Supreme Court of India were thrown open to
people and issues that had hitherto never got there. It has been noted by Muralidhar219 that by
relaxing the rules of standing and procedure to the point where even a post card could be treated
as a writ petition, the judiciary ushered in a new phase of activism where litigants were freed
from the stranglehold of formal law and lawyering.219 Pathak also remarks that the great
advantage of PIL lies in its varied choice of techniques, a unique flexibility and a freedom from
the tyranny of rigid legal formalism.219
Exploiting the foregoing liberal disposition of the Indian Supreme Court and High Court,
several matters that bother on ESC rights were adjudicated upon by the courts as PIL cases. Also
of remarkable importance are the achievements of the Indian courts through PIL in the area of
environmental protection and preservation.219
The use of PIL made it possible for a space to be found for an issue that should otherwise not
have merited sufficient attention.219 It catalysed changes in law and policy in the area of ESC
rights.219 It also helped in the development of a jurisprudence of human rights that comports
with the development of international law.219
(d) Other strategies
cxxviii
The other strategies employed by the Indian judiciary include the declared indivisibility of the
Fundamental Rights and the Directive Principles of State Policies, as well as the application of
international law principles. At the early stages of the development of the Indian judiciary, there
was indeed a tussle for primacy between the Fundamental Rights and the Directive Principles of
State Policies and the courts were more inclined to the view that the directive principles should
conform to and run subsidiary to the fundamental rights.219 However, later in the Fundamental
Rights case, 219 the Supreme Court through a wonderful demonstration of creativity came up
with the view that what was fundamental in the governance of the country cannot be less
significant than what was significant in the life of individual. The fundamental rights and
Directive Principles of State Policies were thereby declared complementary and indivisible. This
view helped a lot in subsequent cases involving the protection and enforcement of ESC rights in
India.219
The success recorded by India in the protection and enforcement of ESC rights was made
possible, partly because of the country’s respect for the application of international law
principles. In the first place, the constitution makes adequate provision for this219 and the
judiciary in Vishaka v. State of Rajasthan219 declared that the provisions of the Convention on
the Elimination of all Forms of Discrimination Against Women (CEDAW) to which India was a
party, were binding and enforceable as such in India. The court further adopted several of the
standards and norms contained in the CEDAW provisions while formulating binding guidelines
which would remain in force till such a time when the parliament enacted an appropriate law.
The preceding sections of this dissertation have been devoted to an analysis of the efforts by
India towards the protection and enforcement of ESC rights. It remains to be presented a critical
assessment of the Indian experience generally, and in comparison with the other two
cxxix jurisdictions under investigation in this research. It is to that evaluation that this research now
turns.
5.7 Evaluating the Indian Experience.
The Indian experience is interesting in more ways than one. First, the Indian Constitution
recognizes ESC rights merely as Directive Principles of State Policy which are expressly made
non-justiciable. In comparison with the provisions of the South African Constitution on ESC
rights, India falls flat. However, after surmounting early reluctance to accord the Directive
Principles of State Policy an equal status with the Fundamental Rights, the Indian judiciary has
today carved a niche for itself as one of the most activist jurisdictions in the world when it
comes to the protection and enforcement of the ESC rights. This feat, the judiciary achieved by
employing a number of innovative strategies, including the principle of substantive due process,
and the doctrine of judicial review, indivisibility of the Fundamental Rights and the Directive
Principles of State Policies, creative and expanded interpretation of the right to life, Public
Interest Litigation, and the application of international law principles. Through these strategies,
ESC rights which were otherwise non-justiciable were adjudicated upon by the courts. It also
stands to the credit of the vibrant Indian judiciary that the United Nations-recommended
minimum core obligation219 got recognized and enforced by the State. This was demonstrated in
the cases concerning emergency medical care,219 compulsory free primary education,219 and the
right to food.219 It has to be noted that the South African Constitutional Court rejected the
minimum core principle preferring rather the principle of reasonableness in reviewing executive
actions or inaction with respect to ESC rights.219 It is submitted that the Indian position is
preferable.
Another credit recorded by the Indian jurisdiction is the fact that in furtherance of the
constitutional provisions on ESC rights, the Indian Parliament enacted some statutes to help in
cxxx
the protection and enforcement of these rights.219 It is also noteworthy that India satisfied her
international obligation as a signatory to the International Covenant on Economic, Social and
Cultural Rights (ICESCR) to make periodic reports on the protection and enforcement of the
rights therein contained.219 Among the three jurisdictions under comparison, India is the most
up-to-date in this regard. The remarkable judicial activism in the area of ESC rights has also led
to remarkable policy changes. For instance, the decision in Unnikrishnan set out primary
education as the minimum core of the right to education. That decision also prompted a
constitutional amendment that formally acknowledged the transformation of this right from a
Directive Principle of State Policy to an enforceable fundamental right. It is submitted that the
attitude of the Indian judiciary to the protection and enforcement of ESC rights positively
impacted on the general socio-economic and cultural development of that country. It is arguable
that the present enviable gradual but steady transition of India from a Third World economy to a
Second World (or even a developed) economy219 is traceable to the importance attached to ESC
rights by the judiciary. India is gradually becoming a favoured economic bride to other world
economies, the developed, developing and undeveloped.219
The foregoing remarks do not presuppose that the Indian experience in the protection and
enforcement of ESC rights is totally a faultless one. There exist a number of shortcomings in
that jurisdiction. First, the fact that ESC rights are still constitutionally declared non-justiciable
and described merely as policy objectives works serious impediment to the overall protection
and enforcement of these rights.
Second, notwithstanding the landmark achievements recorded by the judiciary through Public
Interest Litigation and other strategies, a number of issues are thrown up and left unanswered.
For instance, some of the PIL cases threw up issues concerning conflicting rights of different
cxxxi sets of individuals or competing public interests. The courts have not been able to satisfactorily
resolve these conflicts.
Third, some of the judgements of the courts, particularly declaratory judgements, remain
unimplemented for an unduly long time.219 Also, the decisions of the courts in the areas of the
right to work219 and the right to shelter219 are not altogether satisfactory, as the judiciary appears
to have unequivocally deferred to executive policy that has progressively denuded these rights.
In addition to the foregoing, the concluding observations and recommendations of the
Committee on Economic, Social and Cultural Rights of the United Nations on the Second to the
Fifth Periodic Reports submitted by India show that the protection and enforcement of ESC
rights in that country, like in South Africa and Nigeria generally still leave much to be desired.
5.8 Conclusion.
This chapter has tried to present the experience of India in the area of the protection and
enforcement of ESC rights. In doing this, a brief constitutional history of India, the present
constitutional provisions on ESC rights as well as the attitude of the Indian judiciary towards the
realisation of these rights were analyzed. Also presented were the roles of the National Human
Rights Commission of India and the Civil Society in the protection and enforcement of ESC
rights. The study found that, just like in Nigeria and most other jurisdictions of the world, ESC
rights enjoy second-class position in the Indian Constitution, as mere Directive Principles of
State Policy are expressly declared non-justiciable. This status makes the realisation and
enforcement of these rights to be subject to the discretion of the Indian government, subject in
turn, to the availability of resources, which decision is constitutionally that of the executive and
the legislative arms of the government. The chapter also found that the Indian judiciary was able
to come round the constitutional impediment of non-justiciability of ESC rights through a very
creative and expansive interpretation of the provisions of the constitution regarding these rights
cxxxii
research, only three countries had ratified the Protocol out of the15 required for it to come into
force.
2.4 Conclusion
In this chapter, attempt has been made to present some of the various views on the origins of the
concept of human rights as well as the evolution of the concept of ESC rights in human rights
jurisprudence. The philosophical, religious and Afro-cultural perspectives were presented. It is
the opinion of this chapter that the concept of human rights, in general, and socio-economic
as well as the highly innovative introduction of Public Interest Litigation (PIL) which ushered in
an enviable regime of unprecedented judicial activism. The rights to health, education, food,
work, and shelter were used in assessing the attitude of the Indian judiciary in the enforcement
of ESC rights. Finally, the chapter did an evaluative appraisal of the Indian experience
comparing it with those of the other jurisdictions under focus in this study and identifying the
strengths and shortcomings of the jurisdiction.
When all is done, it may be safe to submit that notwithstanding the not-very-enviable status
accorded ESC rights by the Indian Constitution, the judiciary remains unrivalled in its
successful activist efforts at ensuring the judicial protection, realization and enforcement of
these rights. It remains to be said, however, that much is still desired from the executive and the
legislative arms. On a comparative basis, generally, India has a lot to teach other jurisdictions of
the world, including Nigeria, to which this study not turns.
cxxxiii
rights on particular, cannot be said to have originated from any particular geographical location
to the exclusion of all other locations. Ideas about human rights, including socio-economic
rights, exist in every place peopled by human beings, including African societies, and are
expressed by those human beings in various ways. The chapter also explained ESC rights and
discussed the legal framework on these rights. The protection and enforcement of these rights
encounter series of problems and obstacle. It is to a general discussion of these obstacles that
this dissertation now turns.
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CHAPTER SEVEN
SUMMARY OF FINDINNGS, RECOMENDATIONS AND CONCLUSSION
7.1 Introduction
In the course of this study, particularly in searching for possible answers to the questions posed
by this research, a number of findings were made. Since this research also hopes to contribute, if
modestly, to both learning and society, it becomes necessary that requisite ideas and opinions be
put forward as recommendations to improve the state of affairs in the respective jurisdictions
studied in this dissertation. This seventh and final chapter, therefore, presents the summary of
findings, the recommendations, and the conclusion of the dissertation.
7.2 Summary of Findings
This section shall be treated under two sub-headings. The first shall be a comparative
presentation of the findings in the three jurisdictions being compared in this study. The second
shall be a summary of some general findings.
7.2.1 Comparative Appraisal of the Three Jurisdictions.
It should be noted that in each of the individual chapters that did an appraisal of the respective
experiences in each of the jurisdictions studied, a comparative appraisal of that jurisdiction and
the others was simultaneously done, using the following indices: constitutional protection of
ESC rights, statutory institutional mechanisms for the enforcement and protection of these
rights, periodic report of compliance with the provisions of the ICESCR, and the attitude of the
judiciary in the various jurisdictions. These indices shall also be used here in presenting a
summary of this comparative appraisal.
7.2.1.1 On Constitutional Protection of ESC Rights
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This dissertation found as a fact that the constitution of each of the three jurisdictions under
comparison makes generous provisions for, and recognises, ESC rights. However, the
constitutions of India and Nigeria create a dichotomy between ESC rights and civil and political
rights by separating them and providing for them in two different portions, describing the ESC
rights as mere fundamental objectives and directive principles of state policy220, and the civil
and political rights as fundamental human rights.221 The South African Constitution, on the
other hand, makes no such distinction but provides for the two categories of rights in the same
portion, describing all of them as the Bill of Rights.222 Also, while the constitutions of Nigeria223
and India224 respectively declare the ESC rights as non-justiciable, the South African
Constitution enjoins all authorities, bodies and organs of government to protect, promote and
fulfil the rights provided under the Bill of Rights equally, and without distinction. Put
differently, while ESC rights are expressly declared non-justiciable in Nigeria and India, they
are impliedly declared justiciable in South Africa. It is submitted that in the area of providing a
friendly environment for the protection and enforcement of ESC rights, the South African
Constitution beats those of India and Nigeria. It has severally been remarked, and this
dissertation shares that view, that among all the constitutions of the countries of the world, that
of South Africa stands out and tall as one of the best in making provision for the protection and
enforcement of ESC rights.
On the scale of comparability among the three jurisdictions studied in this dissertation, South
Africa unmatchably blazes the trail while the other two, Nigeria and India, jostle for unenviable
positions at the rear. As between Nigeria and India, it is submitted that they are like a set of
identical twins with only a nomenclatural difference. It has to be noted, however, to the credit of
220 See Chapter 2 of the 1999 Constitution of Nigeria (as amended) and Part 4 of the 1950 Constitution of India. 221 See Chapter 4 of the 1999 Constitution of Nigeria (as amended) and Part 3 of the Indian Constitution. 222 See Chapter 2, South African Constitution. 223 Sec. 6(6) (c), 1999 Constitution of Nigeria (as amended). 224 Art. 37, Indian Constitution.
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the Indian jurisdiction, that although ESC rights are made expressly non-justiciable, as in
Nigeria, these rights enjoy a constitutional climate which is open to positive exploitation by a
courageous judiciary for the good of the people, unlike in Nigeria. For instance, it has been
asserted that judicial review of executive actions as well as of legislative and judicial or quasi-
judicial orders to ensure strict adherence to the doctrine of substantive due process is recognized
as part of the basic structure of the Indian Constitution which cannot be taken away, even by an
amendment of the Constitution.225
It is finally submitted that the unprecedented revolutionary stance of the South African
Constitution in providing equally for all the human rights paved the way for South Africa’s
stride in the protection and enforcement of ESC rights, especially through the judiciary. But
what is the respective performance of South Africa, India and Nigeria in the use of other
enforcement mechanisms for the protection and enforcement of ESC rights? To this question
this research now turns.
7.2.1.2. On Statutory Institutional Mechanisms for Protection and Enforcement
Generally speaking, the performances of the National Human Rights Commissions of the three
jurisdictions under comparison cannot be said to be satisfactory. On a comparison scale,
however, they weigh differently. The commissions of the three jurisdictions also share one
common disability: they are merely empowered to refer cases that require prosecution to other
governmental authorities and advise such authorities to prosecute.226 The financial,
administrative and operational independence of the Human Rights Commissions in the three
jurisdictions raises varying degrees of doubt. While there may be absolute certainty on the
absence of independence with respect to India and South Africa, it may appear that the recent
225 See Keshavanda Bharati v. State of Kerala (supra). 226 See Sec. 5 (p) of Nigeria’s National Human Rights Commission Act (as amended), 2010; Sec. 18, The
Protection of Human Rights Act of India, 1993.
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amendment to the National Human Rights Commission Act of Nigeria has introduced some
appreciable measure of financial and operational autonomy into the affairs of the Commission.
Comparatively, the South African Human Rights Commission is the best equipped by the
Constitution to work towards the effective protection, promotion and enforcement of the ESC
rights. In fact, of the three jurisdictions being compared, South Africa is the only jurisdiction
where the Human Rights Commission has an express mandate from the Constitution to require
all governmental bodies, organs, authorities and agencies to annually furnish it with information
on their performance of the constitutional obligation to promote, protect and fulfil the ESC
rights.227 To what extent the South African Human Rights Commission has been able to
practically exercise this power remains unclear. It is also not clear, as there is no record of that
available to the researcher, whether any state organ that fails to furnish any such information or
falls short of its expectations in the promotion, protection and enforcement of ESC rights would
be sanctioned by the Commission.
Practically speaking, the National Human Rights Commission of India appears to be the most
actively involved in the practical protection and enforcement of ESC rights among the three
jurisdictions studied. The Commission secured several judicial decisions for the enforcement of
several ESC rights such as the right to shelter,228 food229 and water supply.230 Like its South
African counterpart and unlike its Nigerian counterpart, the NHRCI is reputed for its effective
collaboration with non-governmental organizations in the fight for the protection and
enforcement of ESC rights.231 This is not so in Nigeria where citizens are forcefully evicted
from their homes by government and the National Human Rights Commission of Nigeria has
227 See Sec. 184(a) South African Constitution, 1996. 228 See NHRCI v. State of Anunchal Pradesh (supra). 229 Legal Aid and Advice (an NGO) filed a writ petition alleging death due to malnutrition in Orissa following
which the Commission ordered the payment of 454, 000 rupees to 125 families who lost their children as compensation.
230 NHRCI intervened in the water contamination incident in West Bengal and Andra Pradesh. 231 NHRCI Annual Report of 1994 – 95, p. 5.
cxxxviii
never challenged any such actions in a court or tribunal. Importantly, even the Supreme Court of
India refers ESC rights cases to the Commission and the decisions of the Commission are
regarded and are binding as decisions of the Supreme Court.
It must be admitted, however, that the recent amendment to the Act that set up the National
Human Rights Commission of Nigeria has introduced a number of features which have the
potential of placing the Commission ahead of its counterparts in various parts of the world. The
amended Act provides, among other things, for independence in the conduct of the affairs of the
Commission,232 the funds of the Commission to be a direct charge on the Consolidated Revenue
Fund of the Federation,233 the establishment of Human Rights Fund,234 and the recognition of
the awards and recommendations of the Commission as decisions of the High Court.235 In
comparison with other jurisdictions, Nigeria appears quite ambitious with respect to the new
features of the National Human Rights Commission Act. Neither India nor South Africa has
such autonomy provisions in the Acts of their respective National Human Rights Commissions.
It may, however, be too early in the day to conclude that the Nigerian Commission has achieved
the desired operational and financial autonomy it requires to function independently, fearlessly
and effectively. It may just, therefore, suffice to say that among the human rights commissions
of the three jurisdictions studied, the National Human Rights Commission of Nigeria enjoys the
most enviable independence provisions in the Act that governs it.
In summary, therefore, while Nigeria enjoys the best autonomy provision in the governing Act,
South Africa enjoys the best constitutional mandate and India best practicalises the protection
and enforcement of ESC rights through its National Human Rights Commission. The three
jurisdictions, however, still share the disability of their members and officials being appointed
232 Sec.7. 233 Sec.10. 234 Sec.12. 235 Sec.18.
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by the executive arm. This may ultimately affect their ability to function as truly independent
and autonomous human rights institutions. Also, the commissions in the three jurisdictions pay
very minimal attention to ESC rights issues as against the enormous time, energy and resources
which they expend on issues concerning civil and political rights.
7.2.1.3. On Periodic Reports to the UN Committee on Economic, Social and Cultural
Rights
The treaty obligation on States parties to the ICESCR to make regular periodic reports of their
compliance with the provisions of the Covenant is aimed at ensuring that the States parties
adequately protect and enforce these ESC rights. To make such periodic reports is an indication
that a State party is willing to submit itself to public and international scrutiny and evaluation
with respect to the protection and enforcement of the ESC rights.
Of the three jurisdictions under appraisal in this dissertation, India is the most compliant in this
regard.236 Nigeria comes a very poor second while South Africa brings up the rear. In fact, as at
the time of this research, South Africa had not even ratified the Covenant. It was, indeed, one of
the few countries that voted against the adoption of the Covenant.237 It is noteworthy that the
report and observations by the Committee on ESC Rights which the Committee made on the
reports submitted by India and Nigeria show that these two countries have performed far below
the expectations. While the Committee commended India’s activist judicial attitude in the
enforcement of ESC rights, it regrets, however, that India’s judicial success makes very little
difference as the administrative and legislative actions for the enforcement and protection of
these rights are nothing to write home about.
7.2.1.4 On Judicial Attitude
236 India has so far submitted five periodic reports. Nigeria’s only known report was the one submitted in 1998
while South Africa has never submitted any. 237 See Steiner and Alston, op. cit., p. 260.
cxl
Among the three jurisdictions under comparison, South Africa provides the most
constitutionally conducive environment for the judicial protection of ESC rights. The South
African judiciary has also effectively taken advantage of this friendly constitutional climate in
providing the protection and enforcement for a wide range of ESC rights.
The South African Constitutional Court’s decisions in the Groothbroom and the TAC cases, in
particular, represent a great and unprecedented milestone in the judicial enforcement of ESC
rights, placing that jurisdiction on the global map as one of the most virile global reference
points in the judicial protection and enforcement of these rights.
The success recorded by the judiciary in South Africa can be attributable to the following
factors:
(a) solid constitutional provisions for the protection and enforcement of the ESC rights,
(b) a courageous and creative interpretation of the provisions for ESC rights, particularly
Section 7(2) which places the obligation to “respect, protect, promote and fulfil the rights
in the Bill of Rights” on the government,
(c) the declaration that the justiciability of ESC rights does not offend against the doctrine of
separation of powers;
(d) the prominence accorded international law by the Constitution which places the
Constitutional Court under a strict obligation to consider international law when
interpreting the Bill of Rights and to prefer any interpretation that is consistent with
international law to any alternative interpretation to the reverse.238
The study, however, finds that in spite of the apparent success recorded by the judiciary, the
decisions in Groothbroom and TAC have been criticised on a number of grounds, including:
(a) for rejecting the notion of minimum core obligation;
238 Ss. 231(2)(3) and (4), 232.
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(b) for failing to give content to the rights adjudicated upon;
(c) for granting weak (declaratory) judgements; and
(d) for failing to ensure the proper execution of its judgment.239
The Indian Constitution, like its Nigerian counterpart, recognizes ESC rights merely as
Directive Principles of State Policy and, like Nigeria, declares them expressly non-justiciable.
This study, however, finds that in spite of this glaring disability, among the three jurisdictions,
India stands out as the most activist, creative, courageous and daring when it comes to the
judicial protection and enforcement of ESC rights.
It gave brave and people-oriented judgments in areas and cases which one may describe as
“where the angels fear to tread.” These are areas where chicken-hearted and timorous judges
would never dare make such decisions.
Another commendable thing about the Indian judiciary is that, unlike the South African
judiciary which has been criticised for giving merely declaratory judgments and, unlike the
Nigerian judiciary which is too timid to make even declaratory judgments, it (the Indian
judiciary) makes enforceable consequential orders and gives directives to government and its
agencies on how to carry out its orders. In fact, the Supreme Court of India in its Public Interest
Litigation decisions almost gets to the level of formulating policies for the government. This
has, however, become a veritable ground for criticism from some writers who are not very
favourably disposed towards the justiciability of ESC rights. Such critics claim that this flies in
the face of the constitutional principle of separation of powers.240
239 See generally, C. Mbazira, op. cit., pp. 5 – 6, M. Pieterse loc. cit., pp. , D. Bilchitz, “Placing Basic Needs at the
Centre of Socio-Economic Rights Jurisprudence,” loc. cit., pp. 2 – 4, D. Bilcihtz, “Giving Socio-Economic Rights Teeth: Minimum Core and its Importance,” loc. cit., pp. 487 – 488.
240 See for example, Ghai & Cottrell, ‘‘The Role of the Court in Implementing Economic, Social and Cultural Rights’’ in Ghai and Cottrell (eds.) pp.58-89.
cxlii
Another edge which the Indian judiciary has over the other two jurisdictions is that it almost
always practically ensures that its orders are carried out by the parties to which the orders are
directed. It may even appoint the experts or people to put into effect the orders. This cannot
definitely be said of South African courts and, least of all, Nigerian courts. The closest the South
African judiciary got to India was in the TAC case. Yet, the South African Constitutional
Court’s decisions in Grootbroom and TAC, the boldest from South Africa, have been criticised
for being merely declaratory, failing to give content to the rights being enforced, failing to
uphold the UN CESCR’s recommendation of a minimum core of obligation. Contrariwise, the
Indian Supreme Court gives content to the rights under contention and specifically places the
minimum limit below which each right could not be abused.
This dissertation also finds that the Indian judiciary achieved this feat by employing a number of
innovative strategies, including:
(a) the application of the principle of substantive due process and the doctrine of judicial
review;
(b) the declared indivisibility of the Fundamental Rights and the Directive Principles of
State Policies;
(c) creative and expanded interpretation of the right to life;
(d) public interest litigation; and
(e) the application of international law principles, such as the UN – recommended minimum
core obligation.241
In comparison with the South African judiciary, India deserves more commendation because it
does not enjoy the favourable constitutional climate enjoyed by South Africa, yet it has achieved
so much.
241 See the UN Committee on Economic, Social and Cultural Rights, General Comment No. 3 (1990) which was applied in Paschim Bangi Khet Mazdoor Samity v. State of Bengal (supra), Unnikrishnan J.P. v. State of Andhra Pradesh (supra), People Union of Civil Liberties v. Union of India (Supra).
cxliii
This enviable judicial activism in the Indian jurisdiction also led to several policy changes in
several areas such as education, food and the environment. It is on record that the decision in
Unnikrishnan led to the adoption of primary education as the minimum core content of the right
to education as well the transformation of that right from DPSP to Fundamental Right. The
attitude of the Indian judiciary has also led to the overall socio-economic and cultural
development of the State.
This dissertation finds, however, that it is not to the credit of the Indian jurisdiction that ESC
rights are still constitutionally declared non-justiciable. Also, a number of issues which are
thrown up in the course of adjudicating ESC rights, especially using PIL, are left unanswered.
These issues involve the conflict of individual or public interests which the courts have not been
able to satisfactorily resolve. It is found that some of the judgments of the courts, particularly
declaratory judgements, remain unexecuted for an unduly long time.242 Also with respect to the
rights to work and shelter, the study finds that the decision of the courts are not altogether
satisfactory as the courts deferred to government policy denuding the rights. As earlier stated,
the success recorded by the Indian judiciary is attributable to the factors earlier enumerated, the
last of which factors it shares with the South African jurisdiction.
It is a finding of this dissertation that of the three jurisdictions being compared, Nigeria has the
most docile passivist judiciary with respect to the protection of ESC rights. It is also found that
the courts in Nigeria often decline jurisdiction to entertain ESC matters on the ground that issues
relating to the provisions of Chapter II of the Constitution of Nigeria are non-justiciable. Nigeria
regrettably does not come anywhere near the judicial feats recorded by India and South Africa.
This may be attributable to the long period of military dictatorship as well as the lack of courage
242 Such as the Bhopal Gas Disaster (The Union Carbide Case) of 1984. Issues concerning the victims of which
lingered on till mid 2011.
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and creativity on the part of the Nigerian bar and bench. While Nigerian lawyers are found not
to be adventurous enough to challenge violations of ESC rights, Nigerian courts are not
courageous enough to apply the innovativeness and expansivism demonstrated by their South
African and Indian counterparts in interpreting the constitutional provisions on ESC rights.
Happily, however, this dissertation finds that the provisions of Chapter II of the 1999
Constitution of Nigeria (as amended) may, after all, not be as completely non-justiciable as
generally believed, in spite of the seemingly impregnable non-justiciability provisions of
Section 6(6)(c) of the Constitution. A community reading of sections 4, 6(6)(c) and Item 60(a)
of the Second Schedule to that Constitution reveals that if the National Assembly makes laws
establishing agencies or authorities for the protection and enforcement of the Chapter II rights
and empowering such agencies or authorities to challenge in court any violation of a provision
of the said Chapter, such laws are constitutional and, therefore, good.
It is also a finding of this dissertation that the National Assembly of Nigeria has already done
this through the establishment of the National Human Rights Commission of Nigeria. This
dissertation further finds that the NHRCN can now judicially successfully protect and enforce
the Fundamental Objectives and Directive Principles contained in Chapter II of the Constitution.
When Sections 4, 6(6)(c) and Item 60(a) of the Second Schedule to the Constitution of Nigeria,
as well as section 6(1)(b) of the National Human Rights Commission of Nigeria Act (as
amended) are read together, this finding is better and more clearly understood. By section 5(a)
of the NHRCN Act 2004(as amended), one of the functions of the Commission is to deal with
all matters relating to the promotion and protection of human rights guaranteed by the
Constitution of the Federal Republic of Nigeria as well as all international human rights
instruments to which Nigeria is a party. Section 6(1)(b) of the Act (as amended) empowers the
cxlv
Commission to institute any civil action it deems fit in relation to the exercise of its functions
under this Act.
It is the firm opinion of this dissertation that the Commission, having been established through a
combined application of section 4(2) and Item 60(a), Second Schedule to the Constitution, can
effectively seek to promote or protect any of the rights under Chapter II of the Constitution
through the courts, notwithstanding the provisions of section 6(6)(c). It is submitted further that
the Commission can exercise this power against the government and its agencies, private
individuals or corporate organisations. The power is exercisable in favour of individuals and
groups. The National Assembly has also done this through the establishment of the Independent
Corrupt Practices and Other Related Offences Commission (ICPC) which enforces the
provisions of Section 15(5) of the Constitution through the courts.243 It can, therefore, be safely
asserted that section 6(6)(c) of the Constitution is far from being an impregnable bar to the
justiciability of the so-called Fundamental Objectives and Directive Principles of State Policy
provisions of the Constitution.
As a result of the not-very-friendly environment offered by the Nigerian domestic judicial
system, recourse has been had to the African regional and sub-regional human rights
enforcement institutions with jurisdiction over Nigeria.244 The African Charter on Human and
Peoples’ Rights (ACHPR) is one instrument that provides for the use of these institutions. The
ACHPR has an edge over other regional instruments,245 because it accords equal status to ESC
rights as to civil and political rights. It also reflects the peculiar socio-cultural climate of Africa
in its recognition of individual and communal rights, duties, and obligations. The ACHPR has
also been domesticated and can be applied in any court in Nigeria. It is the finding of this 243See A.G. Ondo State v. A.G. Federation (supra). 244 Such as the African Commission on Human and Peoples’ Rights, the ECOWAS Community Court of Justice, The African Court of Justice and Human Rights (created on 1st July,2008 by the merging of the former African Court of Justice with the African Court of Human and Peoples Rights ). 245 Such as the European Convention on Human Rights.
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dissertation that the few cases that have been adjudicated upon in Nigeria’s municipal courts, the
African Commission and the ECOWAS Community Court of Justice have produced very
encouraging results. The ACHPR has, therefore, provided exploitable windows of opportunities
for lawyers, victims and the civil society seeking to enforce ESC rights. Another great window
of opportunity is the one offered by the Optional Protocol on the ICESCR (OP-ICESCR).
However, the African Charter is found to have omitted a number of ESC rights in its provisions.
Also, the rights provided for in the Charter reflect the vagueness and lack of specificity in
content characteristic of the ICESCR provisions. It is also a finding of this dissertation that the
complimentarity principle which applies to both the ACHPR and the OP-ICESCR may not make
for quick dispensation of justice as some mischievous national governments may convert it to a
weapon for delay and circumvention.
7.2.2 General Findings
Generally speaking, this dissertation finds that the idea that ESC rights, as a whole category, are
not fit for judicial adjudication is grossly misguided and untrue, as the commonly touted
obstacles to their justiciability may equally affect civil and political rights, but this has never led
to the conclusion that civil and political rights are generally not justiciable. There is no doubt
that justiciability is not the only means of enforcing ESC rights, as a great number of tasks
required for the full realization of these rights depend on actions by the legislative and executive
branches of the State. It is, however, found by this dissertation that denying judicial intervention
in this field seriously reduces the remedies victims can claim, weakens state accountability,
erodes deterrence and consequently fosters impunity for violation. Comparative international
and domestic developments, both in terms of conceptual frameworks and practical case law,
show how ESC rights offer a range of possibilities for justiciability and these present good
examples to be followed in other jurisdictions. It is also found that the resource constraint
argument for the non-justiciability and reluctant implementation of ESC rights does not hold
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water. In fact, it is lack of the political will that works against the legal protection and
enforcement of these rights. In addition to all the above, the research found that official
corruption and its twin sister economic crimes contribute to the poor attitude of government
towards the protection and enforcement of ESC rights.
7.3 Recommendations
Based on the foregoing findings, the following recommendations are hereby put forward.
7.3.1. On Constitutional Protection
The following suggestions are hereby offered for better constitutional protection and
enforcement of ESC rights.
(a) A Single Non-Discriminatory Constitutional Bill of Rights for Each of India and
Nigeria.
The South African Constitution provides for an all-inclusive non-discriminatory
constitutional bill of rights and enjoins all persons, organs and agencies of government to
protect, promote and fulfil the rights therein provided. It is here suggested that India and
Nigeria should borrow the South African leaf and amend their constitutions to provide
for all the human rights, ESC rights as well as civil and political rights, in a single bill of
rights, making all of them equally justiciable, without segregating between the so-called
justiciable civil and political rights and the non-justiciable ESC rights, otherwise called
Directive Principles of State Policy.
(b) Constitutionalising all the ICESCR-Recognized Rights and Setting State’s
Minimum Core of Obligations
The constitutions of the three jurisdictions should recognise and provide for the
protection and enforcement of all the ESC rights provided for and recognized under the
ICESCR without any exception. These constitutions should also give specific content to
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these rights, for instance, by specifying the minimum level of enforcement required of
the state with respect to each right. Paragraph 10 of the UN Committee on ESC Rights
General Comment No. 3 of 14 December, 1990, should be a guide in this regard246.
(c) Greater Constitutional Roles for International Law: Nigeria and India to Borrow
from South Africa.
It is also recommended that Nigeria and India should learn from South Africa that their
constitutions should assign greater roles to international law, particularly in the
interpretation and application of constitutional provisions. Nigeria and India should
amend their constitutions to include provisions similar to the provisions of section 39(1)
and section 232 of the South African Constitution.
7.3.2. On Statutory Institutional Mechanisms
The following recommendations are hereby made with regard to the roles of the national human
rights institutions and the ICESCR Committee.
(a) Greater Autonomy for the National Human Rights Commissions of the Three
Jurisdictions
The human rights commissions of the three jurisdictions should be made to enjoy
complete autonomy and freedom from state control as against what presently obtains.
This autonomy is in the areas of funding, administration and operation. It is
recommended that members of the councils or administrative organs of the various
national human rights commissions should be nominated by individuals and human
rights-oriented civil society groups. Such persons must be people of proven integrity and
courage with track records of committed human rights advocacy. Their nomination 246 In that paragraph, the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at
the very least, minimum essential levels of each of the rights is incumbent upon each of the parties. What this means is that a State party in which any significant number of individuals is deprived of essential foodstuffs, essential primary health care, basic shelter and housing, or the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant.
cxlix
should, however, be subject to approval by the National Assembly of each jurisdiction.
With respect to funding, it appears, as earlier stated, that the National Human Rights
Commission of Nigeria enjoys the greatest autonomy among the three jurisdictions
studied. It is, therefore, suggested that South Africa and India should emulate Nigeria,
whose law provides for the establishment of a Fund for the Commission and makes the
funds of the Commission directly charged on the Consolidated Revenue Fund of the
Federation. Their laws should also provide, as is the case in Nigeria, that the State shall
not interfere with the operations of the Commission.
(b) Power to Prosecute Violations
Each of the national human rights commissions of the three jurisdictions should be
empowered to prosecute human rights violators, as against the present situation whereby,
as in Nigeria, the Commission is merely required to report cases of violation which
require prosecution to the Attorney-General of the Federation or of a State to prosecute.
Also, the present situation whereby the South African Human Rights Commission only
has the power to demand for reports of protection and enforcement from governmental
bodies is not enough. It is recommended that defaulting agencies or private bodies or
individuals should be sanctioned by the Commission.
(c) Power to Institute Civil Actions: India and South Africa to Emulate Nigeria
It appears that among the commissions of the three jurisdictions under comparison in this
dissertation, the National Human Rights Commission of Nigeria enjoys the widest
latitude of powers, being the only commission empowered to institute civil actions in
courts for the judicial enforcement of human rights, including the ESC rights contained
in Chapter II of the 1999 Constitution. It is recommended that South Africa and India
should learn this from Nigeria.
(d) Recognition, Enforceability and Bindingness of Awards: Others to Emulate Nigeria
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The National Human Rights Commission of Nigeria (Amendment) Act, 2010 provides
that awards of the Commission are recognized as binding and are enforceable by the
court as its own judgment. It is recommended that both South Africa and India should
include such provisions in the laws establishing their own national human rights
commissions.
(e) Adequate Staff Development and Networking with Other Stakeholders
It was found out that one of the major problems militating against the effective
protection, promotion and enforcement of ESC rights is the lack of adequate managerial
skills and knowledge about the importance, nature and character of ESC rights by the
staff of the various human rights commissions. It is, therefore, recommended that staff of
these commissions be given the opportunity of improving on their managerial and other
skills, as well as their understanding of ESC rights through workshops, seminars,
symposia and other professional training. The performance of these institutions can also
be tremendously improved if there exists adequate and effective networking between
them and other ESC rights stakeholders, including the civil society, state and non-state
actors, locally and internationally. Even though it still requires a great deal of
improvement in this regard, the Indian National Human Rights Commission appears to
do better than the other two jurisdictions and therefore commends itself to emulation by
the others.
(f) Practical Protection and Enforcement of ESC Rights: Nigeria and South Africa to
Learn from India
It is here suggested that the human rights commissions in the three jurisdictions should
pay more attention to the practical protection and enforcement of ESC rights than they
do at the moment. Nigeria seems to be the worst offender in this regard while India is
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clearly better than the others. They seem to think that their tasks start and end with
selected civil and political rights. ESC rights deserve as much attention as their civil and
political counterparts.
7.3.3 On Periodic Reports of Compliance with the Provisions of the ICESCR
(a) Domestic Application of the ICESCR
The three jurisdictions have signed the ICESCR, with South Africa signing last.
However, South Africa has neither ratified nor domesticated this covenant while Nigeria
and India have ratified without domesticating it. It is recommended that each of these
jurisdictions should complete the process of making the provisions of the Covenant
integral part of its municipal law. With respect to the domestic application of the
provisions of the Covenant, it is suggested that General Comment No. 9 by the
Committee on ESC Rights247 should guide the states.
(b) Making States’ performance of Treaty Obligations Mandatory
The seeming merely exhortatory nature of international treaties makes it possible for
states parties to flout the provisions of such treaties without fear of any sanction. The
United Nations General Assembly should pass a resolution that any state that voluntarily
enters into any treaty and fails to fulfil its obligations under the treaty shall be visited
with specified serious sanctions. Such sanctions should, at all material times, be carried
out against any defaulting state. The two principles of international law which support
the mandatory domestic application of the ICESCR by states parties are article 29 of the
Vienna Convention on the Law of Treaties248and article 8 of the UDHR.249
(c) Making the Concluding Observations of the ESCR Committee Sanction-Backed 247 See UN Doc. E/C.12/1998/24, CESCR General Comment 9 of 3 Dec., 1998. 248 Which provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. 249 Which provides for a right to an effective remedy by the competent national tribunals.
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The fact that the Concluding Observations of the ESCR Committee as well as the
subsequent General Comments are not binding on state parties makes this protection and
enforcement mechanism rather weak. It is here suggested that the UN should pass a
resolution that any state party to the ICESCR who violates any of the provisions of the
Covenant or who fails to observe specified minimum core of obligation in respect of any
right shall be visited with international sanctions – economic, political et cetera. This
will help lend some bite to the Concluding Observations and General Comments.
(d) Submitting Periodic Reports of Compliance with Provisions of ICESCR: Nigeria
and South Africa to Emulate India
Nigeria and South Africa should learn from India which has submitted all her five
periodic reports to the UN Committee on ESCR.
7.3.4 On Judicial Attitude
This dissertation has traversed the judicial landscape of the three jurisdictions being compared
and found out that each of them presents a different attitude towards the enforcement of ESC
rights through the courts of law. Based on the findings made in the course of this intellectual
excursion, the following recommendations are hereby proffered:
(a) Judicial Application of the Minimum Core Content Principle
It is recommended that courts in the three jurisdictions, especially Nigeria and South
Africa, should always try to apply this principle in deciding ESC rights matters. This
will, among other things, give content to the rights being adjudicated upon. The rights
violator in such a proceeding may, however, be allowed to justify the non-satisfaction of
the minimum core obligations while the courts should pronounce on the constitutional
acceptability of such justification. India has already done that in a number of cases.
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(b) Adoption of India’s Judicial Success Strategy by Nigeria and South Africa
The tremendous success registered by the Indian judiciary in the legal enforcement of
ESC rights is attributable to the innovative strategies earlier on stated. It is, therefore,
suggested that Nigeria and South Africa should learn these strategies from India and
apply them domestically.
(c) Exploitation of the Current Position of the law in Nigeria
It may sound curious, but it is true that, even in the face of the present apparent non-
justiciability provisions in the 1999 Constitution of Nigeria (as amended) with respect to
the rights provided under its Chapter II, these rights may, nevertheless, be enforceable in
courts. The National Human Rights Commission of Nigeria is constitutionally
empowered to seek the judicial enforcement of these rights. This dissertation
recommends that the Commission should rise up to this challenge. In the event that it
fails or neglects to do this, any victim can apply to an appropriate court for an order to
compel the Commission to do its public duty. The court has the jurisdiction to entertain
such an application and make the appropriate consequential orders.
(d) Public Interest Litigation and a Relaxation of the Rule on Standing to Sue
It is recommended that lawyers, civil society groups and other ESC rights advocates in
Nigeria and South Africa should be courageous enough to employ the Indian strategy of
public interest litigation to fight for the judicial enforcement of ESC rights. To this end,
it is also recommended that the rule on standing as seemingly provided in the Nigerian
Constitution should be clarified and relaxed through either a legislative action or judicial
interpretation, so that cases of violation of ESC rights can be effectively challenged and
redressed in courts. The Supreme Court is hereby called upon to make its position clear
on the proper interpretation of section 6(6)(c) of the 1999 Constitution (as amended). It
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is not very clear whether the provisions in the current Fundamental Rights (Enforcement
Procedure) Rules, 2009, waiving the requirement for locus standi in bringing any action
on behalf of a victim of human rights violation applies to ESC rights as it does to the
civil and political rights.250 It is here submitted that the applicability or otherwise of the
said provision can only be ascertained if it is tested in court.by rigid adherence to the
ubiquitous
In the final analysis, this dissertation completely associates itself with the erudite views
of Pats Achalonu JSC in Ladejobi v. Oguntayo251where he remarked
‘‘It is dangerous to limit the opportunity for one to canvass his case by rigid adherence to the ubiquitous
principle inherent in locus standi which is whether a person has standing in a case. The society is
becoming highly dynamic and certain stands of yester years may no longer stand in the present state of our
social and political development’’. The truth cannot be better captured.
(e) Establishment of a Specialized Court by Nigeria
This dissertation recommends the establishment of a specialized court, may be,
somewhat similar to the South African Constitutional Court, to handle all human rights
and other constitutional issues. This will lay to rest the usual argument that the normal
court will be overwhelmed by and over-flooded with cases.
(f) Human Capacity Development and Continuing Legal Education for the Bar and
the Bench
It is suggested that the judicial officers and other members of staff of the Nigerian
judiciary be given the opportunity of developing a better understanding of the nature and
importance of ESC rights as well as the current global movement towards the
justiciability of these rights. This can be done through seminars, workshops, symposia
250 See Enyinna Nwauche, “The Nigerian Fundamental Rights (Enforcement) Procedure Rules 2009: A Fitting
Response to Problems in the Enforcement of Human Rights in Nigeria?” (2010) 10 AHRLJ, Vol. 2, p.512. 251(2004) All FWLR(pt. 231) p. 1209 at 1235-1236.
clv
and colloquia aimed at improving their adjudicatory skills in the field of ESC rights and
acquainting them with the current international developments in this field. Nigerian
lawyers should also be exposed to avenues for acquiring knowledge and skills on how to
litigate ESC rights. Civil society and other non-governmental organisations can be of
great help in this regard.
(g) Eclecticism in the Choice of Methods for the Enforcement of ESC Rights
Of a truth, justiciability is not the only means of enforcing ESC rights. A great number
of tasks required for the full realization of these rights depend primarily on action by the
executive and legislative branches of the state. It is, therefore, suggested that the choice
of any method of enforcement should actually be determined on a case-by-case basis and
on the merit of each case. It must be admitted that some human rights (ESC as well as
civil and political) are better and more conveniently protected and enforced through
other means than the court. Such other means may include pressure-procured
administrative policies, parliamentary legislation as well as legislative oversight
functions.
(h) Procedural Dynamism and Flexibility
Some ESC rights cases, just like those of their civil and political rights counterparts, may
involve highly technical or complex and disputed questions. They may also involve
collective grievances or require collective remedies with results affecting a wide and,
sometimes, uncontemplated range of persons. It is recommended that when this is so,
procedures can be adjusted, for instance, to include proper expert testimony and a
broader range of voices. It is also suggested that effective procedural frameworks be
provided to ensure proper treatment of such cases. Such measures may include ensuring
that all those likely to be affected by the outcome of such proceedings are made aware of
the proceedings.
clvi
(i) Application of Recent Innovative Concepts and Practical Developments to give
Content to ESC Rights
To make for successful justiciability of ESC rights and debunk the traditional objections
thereto, it is recommended that the judiciary, lawyers and also ESC rights advocates in
the various jurisdictions, particularly, Nigeria and South Africa should have in their
arsenal the following innovative concepts: the concept of minimum core content, the
distinction between duties of immediate effect ffuand duties subjected to progressive
realization, the three different layers of state duties, namely, duties to respect, protect and
fulfil, the application of the prohibition of discrimination, the principle of equality and
procedural guarantees as well as the interconnection between ESC rights and civil and
political rights.
(j) Independence of the Judiciary
Most of the suggestions put forward here may not be achieved unless the judiciary in
each of the jurisdictions is free from executive, legislative or political control. Only a
truly independent judiciary can dispense justice without fear or favour, particularly with
regard to the protection and enforcement of ESC rights. To this end, it is suggested that
the judiciary should be operationally and financially autonomous. This should include
the mode of appointment, remuneration and discipline of members of the bench at the
various levels of the judicial echelon. It is not being suggested that the usual
governmental checks and balances that beautify separation of powers should be
jettisoned. It is submitted that the more independent the judiciary, the more effective all
the arms of government.
clvii
7.3.5 General Recommendations
(a) Legislative Advocacy
Nigerian lawyers (through the Nigerian Bar Association), individual socio-economic
rights advocates, and the civil society should take advantage of the constitutional
provisions in sections 4, 6 (6) (c) and Item 60(a) to put pressure on the National
Assembly to make laws establishing authorities or institutions to promote, protect and
enforce the provisions of Chapter II of the Constitution and empowering such authorities
to be able to seek the enforcement of such rights in courts. Generally, international
human rights standards can be used as a lobbying tool to remind state parties to ICESCR
of their obligations under international law and, specifically, their obligation to develop
legislation to progressively achieve ESC rights. Article 2 of the ICESCR specifically
mandates that state parties adopt legislative measures towards the fulfilment of their
obligations.
(b) Improving the Global, Regional and Sub-Regional Mechanisms
It is recommended that the loopholes in the global, regional and sub-regional instruments
and institutions concerning ESC rights which States parties mischievously exploit to shy
away from protecting and enforcing these rights should be plugged.
(b) Strengthening the democratic institutions of the states
It is also suggested that the respective institutions responsible for conducting elections,
combating official corruption, protecting human rights, and fighting financial crimes and
economic sabotage in the various jurisdictions252 be restructured and strengthened in
such a way as to make them truly independent of governmental control. There should be 252 In Nigeria, these institutions include the Independent National Electoral Commission (INEC), the Independent
Corrupt Practices and Other Related Offences Commission (ICPC), the National Human Rights Commission (NHRC), and the Economic and Financial Crimes Commission (EFCC).
clviii
more private and civil society participation in the running of such institutions to make
them more effective, so that people who are put in positions of authority shall be better
controlled, check-mated and made more efficient, responsive and accountable.
(c) Public Advocacy and Budget Tracking
Individual ESC rights advocates, NGOs and the civil society owe the citizens a duty to
educate, empower and mobilise them towards full knowledge and understanding of their
rights, duties and privileges as well as the workings of government. This can be done
through public advocacy events by which the rural and urban poor can be equipped with
the requisite skills and knowledge to evaluate the performance of their leaders, pass
value judgements and make requisite demands. One of the numerous ways through
which the citizens can check-mate their leaders and ensure the protection and
enforcement of ESC rights is through budget tracking. In Nigeria, the recently enacted
Freedom of Information Act253makes it easy for citizens to access public information
with minimal stress.
A virile civil society is very essential for the protection and enforcement of ESC rights.
Non-governmental organisations and the civil society have been active in fighting
against the violation of civil and political rights, paying little attention to ESC rights. It is
suggested that more NGOs and civil society organisations should turn their attention to
this category of rights which is the cornerstone of human existence, without which civil
and political rights remain largely meaningless.
(d) International Cooperation for Domestic Application
International cooperation is indispensible in ensuring that ESC rights are adequately
protected and enforced domestically. It has rightly been asserted254 that the essential
253 Freedom of Information Act, 2011. 254 An-Na’im, loc. cit., p.8.
clix
purpose and rationale of the UDHR is to ensure the effective protection of certain
fundamental entitlements for all human beings everywhere, even in countries where they
are not provided for as constitutional rights. This is precisely in order to safeguard them
from the contingencies of the national political and administrative processes. Because
states could not be trusted to respect the dignity of their citizens, the UN sought to
establish a set of universal standards in this regard, maintaining that these standards
should be a common standard of achievement for all peoples and all nations. In view of
significant differences in the degree of political will, and gross differentials in
institutional capacity and material resources for the implementation of these rights, this
purpose cannot be achieved without the commitment of members of the international
community to encourage and support each other in the process. This implementation
support is also more likely to have positive effects on a state when it is the collective
efforts of all other states than simply the foreign policy objective of one state or a group
of states. As earlier pointed out, many developed countries are not favourably disposed
towards making the protection and enforcement of ESC rights a mandatory duty. It is
suggested that the UN and other international organisations should work out ways of
ensuring that states parties to ICESCR not only domestically apply the provisions of this
treaty but also help in ensuring the application of same in other countries. This can be
achieved through various means, including persuasion, diplomacy and collective
sanction.
7.4 Conclusion
In the previous chapters of this dissertation, attempts were made to search for answers to the
questions raised by this research and, thereby, solve the problem that necessitated this
intellectual inquiry. In doing this, the research took a general excursion into the origins of the
concept of human rights, the historical evolution of ESC rights as well as the general challenges
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to the recognition, protection and enforcement of these rights. Using four specified indices, the
dissertation did a comparative evaluation of the legal protection and enforcement of ESC rights
in the three jurisdictions selected for this study. In the course of the search for answers to the
questions raised, a number of interesting findings were made, based on which some
recommendations were proffered. It is submitted that, as can be summarily captured below,
these findings provide answers to the questions posed by this research at the outset of this study.
There is no doubt that the constitution of each of the jurisdictions recognises quite a number of
ESC rights. While the constitutions of India and Nigeria regard the rights therein contained
merely as non-justiciable directive principles of state policy, that of South Africa rightly sees
them as an integral part of the people’s justiciable bill of rights. Comparatively speaking,
therefore, South Africa provides the most conducive constitutional climate for the legal
protection and enforcement of ESC rights, followed by India and, then, Nigeria in a pitiably
decreasing order of quality. The national human rights institutions of the three jurisdictions still
share the common disability of having their members appointed by the executive arm of
government. While India’s is the most proactive and practical in the protection and enforcement
of these rights, South Africa’s enjoys the best constitutional environment, and Nigeria’s prides
itself with having the most enviable autonomy provisions in its governing Act. Also, among the
three jurisdictions, India is the most compliant in surrendering herself for international scrutiny
by submitting her treaty-imposed periodic reports to the UN Committee on ESC rights, while
Nigeria crawls far behind her, and South Africa brings up the rear. On judicial attitude, this
study comes to the conclusion that through the combined effects of a clear-coast constitutional
climate and a uniquely imaginative bench, South Africa, undeniably stands out as the world’s
reference point in the area of judicial enforcement of ESC rights. India shares this position with
South Africa and deserves even greater commendation and emulation as the most adventurous,
most courageous, and most activist of the three jurisdictions studied in this research, in spite of
clxi
her obvious constitutional handicap. Nigeria, the most passivist of the three, does not come any
close to these two jurisdictions in this respect. The opinion is, however, hereby expressed that a
more legally curious and daring Nigerian bar can encourage even a docile bench to exploit the
present position of the law in Nigeria, which is not completely helpless, for the effective judicial
enforcement of ESC rights. The study further recommends that the three jurisdictions should
borrow a leaf from one another to improve on the areas where they are respectively less
endowed, while putting into effect the various suggestions generally put forward in this
dissertation. When all is done, success in the current campaign for the effective legal protection
and enforcement of ESC rights, in not only the jurisdictions studied in this dissertation, but in
the various jurisdictions of the world, requires the efforts and cooperation of individuals,
governmental and non-governmental organisations, the civil society as well as the international
community to succeed.
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