The Economic, Social and Cultural Rights

Nega Ewunetie and Admasu Alemayehu Feb 22 2012

The Economic, Social and Cultural Rights

Unlike other international and regional human rights instruments, the African Charter spearheaded the holistic approach to human rights by including civil and political rights and economic, social cultural rights in a single human rights document. In addition, the preamble to the Charter clearly demonstrates stipulating that it was essential to pay particular attention to the right to development, and civil and political rights cannot be dissociated from economic, social and cultural rights. In fact, the Charter sees the satisfaction of economic, social and cultural rights as constituting the guarantee of civil and political rights (preamble, Para. 7). However, unlike other instruments, the Charter contains no express guarantees of the right to social security, food, adequate standard of living or housing, or prohibition of forced labour.

What is the status of implementation of socio-economic and cultural rights? Read Article 2!

  • The Right to work in Equitable and Satisfactory Conditions (Articles 15)

Article 15 provides:

Every individual shall have the right to work under equitable and satisfactory conditions and shall receive equal pay for equal work.

Read Articles 6-9 of ICCPR! What shortcomings you notice in the African Charter? As you can see from this provision, African Charter leaves out a lot of guarantees and details adequately set out under ICCPR.

Article 15 of the African Charter does not per se task state parties to provide work for every person. It rather presumes a situation where there is or will be work to do, and lays down obligations of state parties in such situations. On the other hand, it obligates states to adopt measures and programs that will not only lead to job creation, but also ensure a conducive work environment. Though not expressly stated in the Charter the concept of right to work under equitable and satisfactory conditions generally implies fair and equal wages, the right to promotion where appropriate, the right to follow one’s vocation and to change employment, reasonable work hours, right to paid vacation (leisure and rest) and the likes. The interpretation of Article 15 should necessarily include these guarantees internationally recognized. Do you agree?

The other deficiency in the Charter is the non-recognition of trade union rights as relating to the right to work. So what will be the place of this right? Can we say that it can be invoked under the freedom of association and assembly provisions? The African Commission has elaborated in one of its Guidelines for the Submission of State Reports (1988). Under the Guidelines, “states are obliged to provide information on laws, regulations and court decisions that are designated to promote, regulate or safeguard trade union rights . . . of course, the relevance of ILO Conventions in this area should also be considered.

The African Commission has had few instances to rule on the right under consideration. In its decision on a communication alleging violations of the Charter by Angola on the occasion of the expulsion of nationals of western African countries, the commission stated, that this type of expulsion “calls into question a whole series of rights recognized and guaranteed in the Charter, such as the right [. . .] to work”. In another case concerning the imprisonment of one Cameroon’s magistrate and the refusal of reinstatement after being released, the Commission found violation of article 15. Because, it had prevented him from working as a magistrate even though others condemned in similar circumstances had been reinstated.

  • The Right to Health (Article 16)

Article 16 of ACHPR on the right to health states:

(1) Every person shall have the right to enjoy the best attainable state of physical and mental health, and

(2) States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

According to the above provision, what is the right recognized and the undertaking assumed by the states (obligation of means or result)? Compare with Article 12 of ICESCR!

Expecting any state to directly provide for the medical cost of every person within its territory would be unimaginable even if that state enjoys a rich economy. The provisions of Article 16 speak to health care rather than health as a concept of well-being of every individual. A state can not guarantee the physical and mental well-being of every individual. But a state can and should provide a conducive atmosphere that would enhance the enjoyment of good health care than undermine it. States must adopt measures in the field or primary health care and a comprehensive program of universal immunization against infectious diseases plus the prevention and treatment of endemic, occupational and other diseases. Article 12 (2) of ICESCR, would be a good guideline for the precise objectives to the measures the state must take. In addition, states have to undertake educational programs on the prevention and treatment of health problems.

However, the approach of the African Commission to the right to health is violation-oriented, that is with out inquiry into claim of financial inability. On allegations of mismanagement of public finances and the failure of the government of Zaire to provide basic services and shortage of medicines, the Commission found that “the failure of the government to provide basic services such as safe drinking water and electricity and the shortage of medicines” constitutes a violation of Article 16 [communication 100/93]. The Commission also found Nigeria in violating the right when it prevented detainees under its custody access to medical care [Com. 152/96].

  • The Right to Education [Article 17]

Article 17 of the African Charter states:

(1) Ever individual shall have the right to education

(2) Every individual may freely take part in the cultural life of his community.

(3)   The promotion and protection and protection of moral sand traditional values recognized by the community shall be the duty of the state.

What do you get from the above provision? Is the right to education adequately addressed under African Charter compared to Articles 13, 14 and 15 of the ICESCR?

The right to education has become of great importance in international human rights law to proponents of both generations of rights. Under European Convention, it is treated as a civil and political right [Article 2, First Protocol to the European Convention]. Under the Inter-American Human Rights mechanism, it is one of the economic, social and cultural rights treated as hybrid rights, which are subject to the individual complaint procedure contained in Article 44 of the American Convention [Article 13 of Protocol of San Salvador).

ICESCR and other regional instruments contain elaborate provisions on the extent of the right to education. Article 17 of the African Charter lacks specificity on the contents of the rights such as compulsory nature of primary education, freedom of choice of parents, freedom to establish private educational institutions, protection of intellectual property and so on. The African Commission has identified some contents of the rights in its Guidelines for the Submission of State Reports. The Guidelines show that the right to education comprises the right to primary education, the right to secondary education, the right to post-secondary education, the right to fundamental education, the right to choice of schools, and the principle of free and compulsory education for all. However, still the contents of the above enumerated rights need to be understood in light of universally accepted standards such as under ICESCR. Nmehielle says that the African Commission will have to consider still such broader issues in the right to education as the right to receive education, the right to choice of education and the right to teach. The right to choice of education includes the right that allows parents to make inputs to the kind of education they think is best for their children. Thus, it will be through the choice of education that one may freely take part in the cultural life of his or her community, with a view to promote and protect the moral and traditional values recognized by the community.

The right to teach raises some questions as: Is a teacher limited to a set-out curriculum? To what extent can a teacher go outside the prescribed curriculum to impart knowledge? These questions bring out issues of freedom of expression, freedom of conscience, academic freedom, and to a relative extent, the right to work. Teachers may not go outside or below the prescribed standards, but there should be enough flexibility to allow them to use their expertise to the maximum benefit of all. The right to education under the Charter should be read to include the freedom of individuals and entitles to establish and direct educational institutions in accordance with the provisions of national legislation on education that establish minimum curricular requirements and other standards.

Oguergouz criticizes article 17 of African Charter in that it does not impose a precise obligation on the state i.e. the individuals have no any claim against the state. Do you agree with him? When we come to the case law, the African Commission ruled, in the communication against Zaire, that the closures of universities and secondary schools constituted a violation of Article 17. It also reached at similar finding in the mass expulsion of nationals of western Africa by the Angolan Government. From a number of communications against Mauritania, the Commission in one case stressed the importance of linguistic freedom in the following terms:

Language is an integral part of the structure of culture; it in fact constitutes its pillar and means of expression par excellence. Its usage enriches the individual and enables him to take an active part in the community and its activities. To deprive a man of such participation amounts to depriving him of his identity.

  • Protection of the Family and Other Vulnerable Groups (Arts.18)

What do you think is the distinguishing feature and drawbacks, if any, of this article?

Article 18 of the African Charter uniquely guarantees protection for five different subjects: the family, women, the child, the aged and the disabled. Thus, the provision covers the broader concept of family and those vulnerable groups. This feature of the Charter also contrasts to Articles 10 and 11 of ICESCR and 23 and 24 of ICCPR.

Article 18 (1) & (2), while underscoring the importance of the family as the basic unit of the society, place obligations on state parties not only to protect it and take care of its physical and moral health, but also to assist family members in fulfilling their duties. In addition to the obligations and duty of state to the family, Article 27 (1) and 29 (1) recognize individual duties to the family. Nevertheless, the Charter does not specify exactly what this state duty consists of in order to protect and assist the family [For your comparison see Art. 11 of ICESCR). In affording protection to the family, the state must not only create a legislative framework which will allow the family to develop to its maximum potential, but must also work actively to create societal conditions in which families might flourish. , can you refer to article 15 of the Additional Protocol to the American Convention on Human Rights, for itemized matters of state obligation vis-à-vis family?

One last point, but not least, to be mentioned in relation to rights of family is that the Charter does not contain any provision on the right of every person to marry or establish family.

Third paragraph of Article 18 obligates states to ensure the elimination of every form of discrimination against women and to also ensure the protection of the rights of women and child as stipulated in international declarations and conventions. There are some criticisms that the African Charter grants inadequate protection to the rights of women by inserting one subparagraph under the family provision. Of course, this was anomalous given that it is the continent hosting widespread violation of women’s’ rights from different angles and by different causes. But some say that the Charter has provided wide coverage by making a cross-reference to international declarations and conventions. Articles 60 and 61 of the Charter have also legitimatized resort by way of interpretation. Whatever, the arguments may be, African states have expressed their serious commitment by adopting a separate Protocol to ACHPR on the Rights of women in Africa. We will briefly address OAU/AU initiative in the protection of women’s’ rights in the upcoming unit.

The second part of Article 18 (3) ensures the protection of the rights of the child as stipulated in international declarations and conventions. Similarly the protection of the rights of the child is made to be pursuant to instruments outside the African Charter. These may include: UN Declarations on the Right to Child (1959), UDHR (Art. 16), ICCPR, ICESCR, CRC (1989), OAU Charter on the Rights and welfare of the Child (1990), ILO Conventions and so on. We will discuss some of the basics of child rights instruments in the next chapter.

Article 18 (4) of the Charter stipulates that the aged and the disabled shall have the right to special measures of protection in keeping with their physical or moral condition. This is a very sensitive area of human rights, especially in African where disabled persons for instance, have not been known to be given adequate protection against discrimination, nor opportunities and measures that take their situation into consideration.

Coming to the few case laws of the African Commission (esp. on family), in the aforementioned case of deportation by the Angolan Government, the Commission stressed that “by deporting the victims, thus, separating some of them from their families, the Defendant state has violated and violates the letter of this text [Article 18 (1)].

In connection with another communication alleging, among other things, the illegality of the expulsion by the Zambian Government of two political figures, William Steven Banda and John Luson Chinula, the Commission held that:

by forcing Banda and Chinula to live a stateless persons under degrading conditions, the government of Zambia has deprived them of their family and is depriving their families of the men’s support, and this constitutes a violation of the dignity of a human being, thereby violating Article 5 and Article 18 (1) (2).

Economic, Social and Cultural Rights

Poverty poses major threats to human rights in Africa. Not surprisingly; socio-economic rights play a central role in current discussion about human rights in Africa.

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