The African Commission and Its Treatment of Economic, Social, and Cultural Rights

Abstract

We noted in chapter one that in its preamble, the African Charter stresses the significance of economic, social and cultural rights (collective rights).1 The position in the Charter was a reflection of the tensions between civil and political rights on the one hand, and collective rights on the other. Whilst the civil and political rights in the Charter are constrained by clawback clauses, this is not the case with majority of collective rights. This ostensible preference for collective rights could lead to the conclusion that the drafters of the Charter attached more weight to collective rights than they did to civil and political rights. What does compound issues here however, is that in international human rights scholarship, there is the argument that collective rights are not justiciable, being only programmatic rights instead.2 Thus on the one hand we have a Charter that, on its face, narrows the scope for governments to circumvent their collective rights obligations, yet on the other hand these rights are seen as unenforceable. The African Commission has confronted and, arguably, overcome, this jurisprudential difficulty. In this chapter we examine how the Commission has shaped the African system through its interpretation of the collective rights in the Charter.