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Social, Economic and Cultural Rights - Constitution Watch Content
November 09, 2011
Economic and Cultural Rights: Should they be Protected in the New
are social, economic and cultural rights?
Equality and Fraternity” was the slogan of the French Revolution,
and some writers have used the slogan as a rough guide to divide
human rights into three “generations”.
The first generation
of human rights, which were the first to be recognised in international
law, are those concerned with “liberty”, i.e. with the
right to participate in political life. Examples of these rights
are the rights to personal liberty and the protection of law, freedom
of association and speech, and the right to vote in elections.
The second generation
of rights are those directed at bringing about equal treatment for
all members of society. These rights are also called social, economic
and cultural rights, and they include such rights as:
- the right
to work, to free choice of employment, to just and favourable
conditions of work, including equal pay for equal work, and protection
- the right
to rest and leisure, including reasonable limitation of working
hours and periodic holidays with pay;
- the right
to education, which should be free at least in the elementary
and fundamental stages;
- the right
to housing; and
- the right
to social security, including social insurance.
- the right
of different cultural groups to maintain their cultural identity
The third generation
of rights [a broad and rather woolly category] are those directed
at “fraternity”, i.e. at ensuring social harmony. They
- the right
to a healthy environment, including the right to clean water;
- the right
to natural resources;
- group and
- the right
to self-determination; and
In this Constitution
Watch, when we refer to “social, economic and cultural rights”
[which we shall abbreviate to “SEC rights”] we mean
second-generation rights as well as any third-generation rights
which are capable of being defined reasonably clearly.
Several SEC rights are enunciated in the Universal
Declaration of Human Rights of 1948 and many more in the International
Covenant on Economic, Social and Cultural Rights of 1966.
SEC rights be protected by the new constitution?
There is a strong
moral argument for protecting SEC rights in the Declaration/Bill
of Rights in the our new constitution. Most Zimbabweans face hardship
and poverty throughout their lives. To them, first-generation rights
such as freedom of expression and association may be less important
than social and economic rights such as the right to adequate housing
and health care. The right to be legally represented by a lawyer
of one’s choice, for example, is not much use to someone who
cannot afford to pay the lawyer’s fees; the right to travel
anywhere in Zimbabwe is of little importance to someone who cannot
afford a bus fare. If the new constitution does not protect at least
some basic SEC rights it is liable to be seen as a document drawn
up by members of the political and social élite for their
own benefit, rather than addressing the concerns of the broad mass
of the people.
in enforcing constitutionally protected SEC rights
If SEC rights
are to be protected by the new constitution, how will they be enforced?
This is not an easy question to answer, firstly because it is not
always clear who has a duty to provide SEC rights; and, secondly,
because it may be financially ruinous for the country to provide
will have the duty of providing SEC rights?
a right to something necessarily involves imposing a duty on someone
else to provide that thing. As lawyers put it, every right must
have a corresponding duty, and that duty must be imposed on someone.
rights are normally regarded as “vertical”, i.e. enforceable
against the State, and not “horizontal”, i.e. enforceable
by one individual against another. This is the case with most SEC
rights: the State is expected to provide the services and facilities
needed to give effect to the rights. But there may be grey areas,
where the responsibility for providing the right is not clear.
Take the right
to education, for example. Clearly the State is expected to provide
enough schools and teachers to satisfy the needs of the country’s
children. Obviously the right would not allow poor parents to pick
a rich businessman at random and compel him to pay for their children’s
education. But, would the right allow parents to demand that a private
school accept their children even though they cannot afford the
school fees? And would the right prevent a school from expelling
a child on the ground of non-payment of fees? These are some of
the grey areas mentioned above.
As another example,
take the right to adequate housing. If this right is protected in
the new constitution then generally it is the State that would have
a duty to satisfy it. Householders should not be compelled to accommodate
homeless people in vacant rooms in their homes. On the other hand,
the State might call on others to assist it in providing accommodation,
for example by requiring employers to provide housing for their
employees. How far the State could go in sharing its responsibilities
in this way is debatable - another grey area.
far should SEC rights be enforceable?
Even if SEC
rights are set out in the new constitution, it may not be possible
to give full effect to them, given the country’s slender financial
resources. As an example, take again the right to education. Zimbabwe
has done better than its neighbours in providing primary school
education to its children, but providing all its children with secondary
and tertiary education would overstretch its resources. The same
goes for other SEC rights: the government lacks the resources to
provide all Zimbabweans with access to clean drinking water and
adequate housing, for instance, and is barely able to provide them
with basic health care.
with enforcing SEC rights if they are contained in the new constitution
is that, like all other constitutional rights, they would have to
be enforced through the courts. The courts would have to balance
competing claims of fundamental social values - they might have
to decide, for example, whether limited financial resources should
be expended on providing clean water rather than schools - and this
is not something that the courts are well fitted to do. Judges and
courts lack the political legitimacy and institutional competence
to decide such matters. Furthermore, the courts cannot raise revenue;
that is the province of the legislature. The constitutional doctrine
of separation of powers lays down that it is the function of the
legislature and executive between them to decide how revenue is
to be raised and how it is to be spent, and the courts must not
meddle in that sphere. It would be wrong for a court to order the
State to spend particular sums on, say, education, when the effect
would be to reduce the revenue available for health.
SEC rights can be dealt with in the new constitution
Given the difficulties
in enforcing constitutionally-protected SEC rights, it is not surprising
that the constitutions of countries throughout the world adopt different
approaches towards these rights.
where SEC rights are not enforceable
of some countries - India, Ireland and Namibia, for example - set
out SEC rights but state specifically that they are not enforceable
through the courts. Instead, the rights are stated to be directive
principles of social policy or good governance which must guide
the Legislature and the Executive in making and applying laws. The
effect of this depends on the approach taken by the courts in the
countries concerned. The Indian Supreme Court, for example, has
interpreted directive principles expansively and has ruled that
the right to life includes the right to health and health care,
thereby giving real legal effect to at least some economic and social
where SEC rights are enforceable
constitutions do have enforceable economic and social rights, notably
South Africa, Thailand, Indonesia, Afghanistan, Brazil, Argentina,
Bolivia, Ecuador, South Korea, Cuba, Kenya, Uganda, and Ethiopia.
Most of the
SEC rights set out in the South African Constitution are hedged
about with limitations which relate to reasonableness and the availability
of funds. For example, the right of access to adequate housing (set
out in section 26) requires the State to take reasonable legislative
and other measures, within its available resources, to achieve the
progressive realisation of the right. This formulation has two advantages:
first, it makes it clear that the State is primarily responsible
for providing housing; second, it recognises that the State does
not have the resources to provide everyone immediately with adequate
housing. Other SEC rights are subject to similar limitations.
are very important because they allow the Constitutional Court to
give due weight to the dichotomy between a stated right - for example,
“Everyone has the right to have access to adequate housing”
- and the State’s inability to satisfy that right immediately.
If there were no such limits there would probably have been a clash
between the executive and the legislature, on the one hand, and
the judiciary on the other.
Court of South Africa has developed a considerable body of case-law
in which it has affirmed SEC rights while recognising its limited
power to control broad issues of government policy. For instance,
the court has accepted that the government must be able to evict
squatters who are illegally occupying private land, but has laid
down that the government should provide at least temporary accommodation
for squatters who would be in a desperate plight if they were evicted.
The court has adopted a basic doctrine of “reasonableness”,
under which the court may require the State to take measures to
meet its constitutional obligations and may evaluate the reasonableness
of those measures, but will determine their reasonableness in the
light of budgetary implications and will not seek to rearrange the
new Zimbabwean constitution?
The makers of
the new Zimbabwean constitution would do well to follow the lead
of South Africa in its treatment of SEC rights. Zimbabwe faces many
of the same socio-economic problems as South Africa and has fewer
resources to deal with them. Some provision must be made for SEC
rights in the new constitution if it is to be accepted by the broad
mass of the people as “their” constitution; but if the
new constitution makes those rights unenforceable, the needy sections
of society - the majority of our people, in other words - are likely
to reject the constitution as irrelevant at best and fraudulent
at worst. Making those rights enforceable is feasible, as South
Africa has shown, and does not necessarily lead the courts to intrude
into areas of policy which are the preserve of the Legislature and
the Executive. It might, however, allow people to ensure, at least
to a limited extent, that the government expends its resources wisely
and in their interests.
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