Enforcement Of Socio-economic Rights Research Articles

The Full Enforcement of Socio-economic Rights in Africa: A Dream or a Reality?

The adoption of the African Charter on Human and Peoples’ Rights (African Charter) on 27 June 1981 in Nairobi, Kenya was recorded as historic step towards the protection of human rights in Africa. However, to date, Africans’ socio-economic rights are not fully or at all enforced. The author argues that Africa must take a new approach, a strategic one towards economic development in Africa and consequently the enforcement of socio-economic rights. He submits that several strategic approaches, such as development of new laws on the natural resources, producing quality products and services, image related strategies which involve great marketing of Africa, its products, and services. The author is of opinion that there is a link between economic development and the enforcement of socio-economic rights. It is further argued that intra-African trade will enhance sustainable development and economic growth and it is important. It is submitted that African countries must focus more on intra-African trade, which will accelerate sustainable economic development and consequently the enforcement of socio-economic rights, which will in turn reduce poverty and better the lives of millions of Africans who are in dire need of socio-economic rights to be enforced due to the living conditions they are in. Keywords: Africa; socio-economic rights; natural resources, strategic economic development.

Anti-Communitarian Construction of Human Rights Provisions and the Problematics of Engineering Social Development in Commonwealth Africa: Ripples from the Nigerian Case of Agbai V. Okogbue.

In most countries of the world, socio-economic rights are now concrete and enforceable. In Nigeria however, chapter II of the 1999 Constitution has remained non-justiciable, irrespective of the adoption and ratification of the African Charter on Human and People’s Rights, which contains replica of these socio-economic rights. In countries like South Africa, India and some Latin American countries, the socio-economic rights have been given full force of enforcement either by composite construction of constitutionally guaranteed rights to encapsulate socio-economic rights or by expansive interpretation of the Constitution by the courts. Enforcement of socio-economic rights has nonetheless remained a mirage in Nigeria. Successive governments have hidden under the non justiceability of chapter II of the constitution to evade accountability and responsibility especially in provision of life changing infrastructure. This has impelled communities to engineer their own social development via self-help. Enforcement of compliance towards these self-help measures usually clash with the perceived rights of individuals. This paper therefore raises concern on the construction of the rights provisions to stifle communitarian philosophy enhancing social development via communal self-help projects by revisiting the case of Agbai v. Okagbue. It is posited that with recent dwindling government responses especially in rural infrastructural development, the court has to re-engineer communal development by superimposing communal interest over personal interest especially where such communal interest will also further full realization of personal rights. Key Words: Human Rights, Community Development, Communitarian Principle, Realist Theory, Problem and Commonwealth Africa

Good governance: A legal determinant for the enforcement of socio-economic rights in Africa

In discussions concerning the abysmal level of poverty in Africa which has been a hot topic for decades, the topic of economic, social and cultural (socio-economic) rights is always up for controversy. There are constant reports on the poor state of socio-economic development on the continent. African countries also share the constant criticism for the poor state of socio-economic rights. This paper analyzes the journey of good governance and institutions as a fundamental determinant of the sustainable realization of social and economic right. It explains the position of fundamental rights and directive principles in the Constitutions of some African States. Furthermore, it examines the judicial approach of dealing with the relationship between fundamental rights and directive principles. The findings of this paper go beyond the executive domain and investigate the contributions of judicial institution in realization of socio-economic rights and development in Africa. In this light, it looks into the enforceability of socio-economic rights and recommends establishment of independent institutions in each African state for the enforcement of socio-economic rights.

Structural Interdicts for Socio-economic Rights: What the Kenyan Jurisprudence Has Missed

The enforcement of socio-economic rights is unique as it necessitates positive action in policy-making and bears budgetary implications. Consequently,to prevent such enforcement from exceeding the scope established by the doctrine of ‘separation of powers’, because policy-making and budgetary allocation are under the executive and legislature respectively, the Kenyan Court of Appeal was hesitant to apply structural interdicts in the case of Kenya Airports Authority v MituBell Welfare Society & 2 others.This decision has outlawed structural interdicts from the Kenyan jurisprudential landscape and has failed to give a viable alternative judicial approach that should guide subsequent courts in enforcing socio-economic rights.This study looks into the origin and models of structural interdicts so as to analyse and critique this Court of Appeal’s decision by showing how the Court could have applied structural interdicts in the enforcement of socio-economic rights without impinging on the doctrine of separation of powers.This will be achieved through the use of literature review.

Beyond minimalism and usurpation: designing judicial review to control the mis-enforcement of socioeconomic rights Designing judicial review to control the mis-enforcement of socioeconomic rights

Resumo This work critically evaluates the judicial enforcement of socioeconomic rights and its associate discourses. Drawing on the findings of an empirical research study on the health care-related litigation in Brazil, I argue that none of the two main arguments that drive this constitutional law debate —judicial minimalism and judicial usurpation— offer a complete account as to what I call the mis-enforcement of rights: a scenario with a deficit of inequality resulting from non-justified distributive and aggregate effects due to the judicial protection of a target group. I present evidence that two overlooked structural factors are actually in the roots of the mis-enforcement: the right-based legal reasoning and the litigation system focused on individualized lawsuits. Thus, in order to reorient the debate, I propose a design approach, according to which judicial enforcement of socioeconomic rights in dysfunctional democracies is legitimate as long as it focuses on (i) improving social change through a distribution of goods that guarantee basic needs to disadvantaged groups, under the counter-majoritarian principle, and on (ii) providing the institutions with incentives to effectively take political issues back to the democratic process. Achieving this purpose requires the adjudicatory practice (i) to regard issues more likely to arise in socioeconomic rights-related litigation —such as needs and recipients; (ii) to address background rules that interfere in the dynamics of enforcement— such as the distributive and aggregate effects; and (iii) to observe a procedure that promotes democratic values, such as political engagement, institutional accountability, representativeness, and openness.

Changing Dynamics of Constitutionalism: South Asia's Tryst with Constitution

The prevailing view of the constitutional framework in South Asia is seen as secondary and subsidiary to developed constitutional systems worldwide. Meanwhile, South Asian countries have merely re-produced the constitutional framework of developed nations. The emergence and development of South Asian constitutionalism present a range of perspectives and methodological approaches that contribute to comparative constitutional law scholarship in South Asia. The overt attention toward the Western notion of liberalism has often led to an incomplete and unclear approach to South Asian constitutionalism. The paper aimed to explore the elements of South Asian constitutionalism alongside underlying socio-economic and political discourse surrounding its contemporary understanding. It also analyzed the role of courts in affirming and transforming South Asian constitutionalism. Instead of reviving interest in South Asia and Third World Approach to International Law, this paper showed that it is only practical and pragmatic to study constitutionalism with specific reference to the modern discourse of democracy, judicial review, separation of power, and human rights enshrined in their respective constitutions. In terms of its emergence from the colonial history and other prevalent forms of distinct cultural, social, and political practices, South Asia presented a heterogeneous experience in the light of recognition and enforcement of socio-economic rights and transformations and deviations from its past experiences.
 KEYWORDS: Comparative Constitutional Law, Constitutionalism, South Asia.

Judicial Enforcement of Socio-Economic Rights in Kenya: A Third Degree

Judicial Enforcement of Socio-Economic Rights in Kenya: A Third Degree

Promoting Sustainable Goals in Nigeria through the Kaleidoscope of the Social Protection Floor Initiative

Improving national social protection systems is a major task for all governments. This they can do through an effective implementation of the sustainable goals also called the Sustainable Development Goals (SDGs). The main purpose of social protection is to reduce poverty, economic shocks and vulnerability. This article examines the extent Nigeria has gone to in order to promote sustainable goals through the Social Protection Floor Initiative. The article also delves into the justiciability of socio-economic rights in Nigeria and in other jurisdictions like UK, India and South Africa which are commonwealth countries like Nigeria. It further recommends ways by which Nigeria can, through the Social Protection Floor Initiative, fulfil its obligations towards the attainment of the SDGs. A major conclusion of this article is that the Social Protection Floor Initiative is an important means for the government to achieve the Sustainable Development Goals, and an important aspect of this is ensuring the enforcement of socio-economic rights. Without implementing the Social Protection Floor Initiative, the Sustainable Development Goals mantra will be restricted just to TVs in Nigerian homes without any corresponding impact on the masses.

One step forward, two steps back: A review of Mushoriwa v City of Harare in view of Zimbabwe's constitutional socio-economic rights

SUMMARY In 2013 Zimbabwe enacted a new Constitution, introducing a raft of new changes, among them, the introduction of constitutional socio-economic rights. Not soon thereafter socio-economic rights were tested in the case of Mushoriwa v City of Harare in 2014. The High Court made a finding in favour of the applicant, a decision which enforced the right to water in section 77 of the Constitution. The ruling offered the view that the water bylaws used were unconstitutional and contrary to the enabling statute. This judgment was welcomed as a 'first true test' of socio-economic rights under the 2013 Constitution. In Hove v City of Harare the High Court judge agreed with the reasoning of the Court in Mushoriwa v City of Harare that, in the event of a genuine dispute of a water bill, there should be a recourse to the courts for remedies. In 2018, however, the Supreme Court overturned the decision in the Mushoriwa case. It declared that water disconnections in terms of the water bylaw are above board. This raises questions as to the constitutional obligation to protect the right to water imposed upon all organs of the state. It is against this background that this article reviews the case of Mushoriwa and makes comments on the effects of this judgment, specifically about the enforcement of socio-economic rights in Zimbabwe. Keywords: constitutionality; right to water; Mushoriwa; socio-economic rights

Normal Rights, Just New: Understanding the Judicial Enforcement of Socioeconomic Rights

Abstract A common skeptical view holds that socioeconomic rights are a different kind of right than civil-political rights. Even those who support justiciable socioeconomic rights often see them as a different kind of right with special challenges. I argue that this view is wrong. What all these observers are reacting to is not an inherent property of socioeconomic rights: it is a contingent property of a situation in which judges are asked to enforce a rights claim without a pre-existing set of familiar public understandings of the right’s content and/or an existing structure of officials and procedures to give effect to that content. It is because the rights claim is new, and this is something that can be, and often is, true of rights across the spectrum. Any rights claim is problematic to enforce to the degree that it is new, but these obstacles can and do disappear if society changes and the claim becomes less new. In the first part of the Article, I seek to establish the accuracy of this argument, drawing on examples of rights distinctions from the nineteenth-century United States and rights across the spectrum displaying newness in contemporary South Africa and India. I then show how controlling for newness can help us to understand standard features of the socioeconomic rights debate: the ubiquitous, but misleading, negative–positive distinction; arguments about resources; Fuller’s endlessly cited polycentricity argument; and current controversial cases, such as the budget-shifting judicial enforcement of Latin American healthcare entitlements. These topics are central to our widespread intuition that socioeconomic rights are different; newness can help us to see that this intuition is misleading us, and by recalibrating the debate can filter out some distractions that have long dogged it.

The Judicial Enforcement of Socio-Economic Rights in South Korea

Abstract Socio-economic rights are regarded as an indispensable foundation of substantial freedom. At the same time, the embodiment of socio-economic rights in the Constitution is generally associated with concerns about their quality as a fundamental right and their judicial enforcement. The South Korean Constitution upholds the principle of the welfare state in the preamble, the fundamental social rights of Articles 31 to 36 and Article 119 (2), providing the legal basis for the regulation and coordination of economic affairs by the State. The implementation of these constitutional norms and ideals was left largely to the political process beyond judicial review for many decades. As a result of the rapid economic development, the democratization process and the introduction of constitutional review in the last 30 years, the normative discussion of basic social rights, both on societal and legal level, has taken on a new life. This article examines the South Korean Constitutional Court’s approach to judicial review in the socio-economic field with due regard to this changing reality.

The Role of Courts in Forging Innovative Remedies: Interrogating Kenyan Court of Appeal’s Mitu Bell Judicial Myth and Formalism

This paper seeks to critique the decision of the court of appeal in Mitu bell where judges refused the ethos of the 2010 constitution which required them to be innovative and instead upheld the practice of the past. This paper will firstly look at the place of socio-economic rights in Kenya, secondly the judicial enforcement of socio-economic rights, thirdly the remedy of structural interdict as one of the innovative remedies before making a conclusion.

Structural Interdicts for Socio-economic Rights: What the Kenyan Jurisprudence Has Missed

The enforcement of socio-economic rights is unique as it necessitates positive action in policy-making and bears budgetary implications. Consequently, to prevent such enforcement from exceeding the scope established by the doctrine of ‘separation of powers’, because policy-making and budgetary allocation are under the executive and legislature respectively, the Kenyan Court of Appeal was hesitant to apply structural interdicts in the case of Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others. This decision has outlawed structural interdicts from the Kenyan jurisprudential landscape and has failed to give a viable alternative judicial approach that should guide subsequent courts in enforcing socio-economic rights. This study looks into the origin and models of structural interdicts so as to analyse and critique this Court of Appeal’s decision by showing how the Court could have applied structural interdicts in the enforcement of socio-economic rights without impinging on the doctrine of separation of powers. This will be achieved through the use of literature review.

Challenges to Judicial Enforcement of Socioeconomic Rights in Africa: Comparative Lessons from Ghana and South Africa

It has become increasingly fashionable for many countries especially those in the developing world to include extensive Bills of Rights in their constitutions. The inclusion of socio-economic rights in such Bills of Rights has also been on the increase. While the developing world, particularly emerging democracies in Africa, have been keen on paying special attention to socio-economic rights in their legal systems, the opposite is what generally pertains in the developed world, at least in the United States and under the Strasbourg human rights regime in Europe. The beautifully crafted rights promise economic prosperity and social wellbeing. Courts are granted wide mandates to enforce them. But after several years of constitutional democracy, the majority of the populations in countries with such Bills of Rights are still poor and disillusioned. Disenchanted and frustrated, the masses lash out at the Courts. But, are the Courts really to blame? This chapter examines the above question and argues that the idea of enforcing socio-economic rights through the judicial process is misconceived as courts are ill-suited for the task. That judicial enforcement should at best be a complementary approach to be employed under the most compelling circumstances to aid a political mechanism of enforcement. To illustrate and buttress this point, the chapter reviews the seminal cases on socio-economic rights from Ghana and South Africa. It concludes that a modified form of the monitoring system used at the international level in the implementation of human rights treaties should be adopted at the national level.

Adjudication and Enforcement of Socio-economic Rights under the Indian Constitution: A Critical Study

The literature on constitutional socio-economic Rights world over engages with the long-standing debate over democratic legitimacy and the courts' capacity, to enforce socio-economic rights and seeks to move beyond it by addressing the more complex challenges of identifying principled and effective court enforcement mechanisms. The Constitution of India expressly recognises the divide between Fundamental Rights and Directive Principles of State Policy (DPSP) in Part III and Part IV of the Constitution respectively by making Fundamental Rights justiciable in a court of law and DPSPs non-justiciable. At the same time though, this does not amount to relegation of DPSP to Fundamental Rights. This divide has more to do with the traditional conception of the constitutional role of the three organs of State; viz. Legislature, Executive and the Judiciary. Adjudication has traditionally been associated with an institution which is mainly concerned with corrective justice and hence the functional character of judicial role presupposes violation of legal rights. Economic and social rights or socio-economic rights include the right to access to food, water, housing, healthcare, education and social security and what might approximate the basic goods and services necessary to secure a dignified life. In the modern times, the civilized States have moved long back to being the welfare States rather than adhering to the notion of a laissez faire State, yet it is still more of a political assertion not accruing enforceable socio-economic rights to individuals against the State. Constitutionalism is about putting the government under check and about devising means to ensure that the governmental power is exercised with civility and not in an arbitrary manner. So, a laissez-faire principle of working for a State would be consistent with the ideals of constitutionalism. However, abdication of governance imperatives by way of omission of fundamental governance duties by the State cannot be allowed to go unchallenged on the basis of it being not a case of State acting arbitrarily and therefore perhaps there is a strong case for broadening our understanding of constitutionalism to include within its fold arbitrary and unexplained omissions in relation to fundamental governance imperatives as well. It is also significant that fundamental governance imperatives do not flow from directive principles only; even fundamental rights impose positive obligations and therefore positive obligations of State even by the narrative of fundamental rights being only obligatory cannot be placed outside the confines of constitutionalism.

Editorial


 The enforcement of socio-economic rights, the protection of biodiversity, inter-country adoptions, matrimonial property and Roman property law are the diverse, though highly engaging themes of this last issue of the year.
 In their article focusing on the process of the implementation of socio-economic rights by means of court orders in South Africa, Advocate Renier de Beer of Johannesburg and Professor Stella Vettori of the University of Pretoria urge the courts to become more adventurous in their methods of enforcement of their orders.
 

The Enforcement of Socio-Economic Rights

In recent years the South African legislature has made a very bold attempt to improve the socio-economic conditions of citizens. Amongst others, the Social Assistance Act 59 of 1992 provides for monthly payments to citizens under certain prescribed conditions. In situations where other legislation does not provide a remedy for those unable to care for themselves the Constitution provides for justiciable socio-economic rights. Unfortunately legislative rights alone have proved insufficient and all too frequently the constitutional values and aspirations of human dignity and equality have had a ‘hollow ring’. The most obvious reason for this failure of delivery on the part of the government is of course a shortage of financial resources. Another reason has been a simple disregard for the terms of legislation and court orders by organs of the state and state employees. The authors are of the view that in order to avoid such a dire result, the courts, given their broadly framed constitutional powers, should be adventurous in crafting means to ensure that their orders are properly implemented and adhered to. This article explores the role that courts can play in ensuring proper implementation of both the terms of social security legislation as well as the implementation of court orders with reference to well-fare judgments in the Eastern-Cape.
 

The interdependence between state accountability and socio-economic rights in South African prisons

This article endeavours to elucidate the interrelationship between, on one hand, the state’s constitutional duties to protect its citizenry and, on the other, the enforceability of socio-economic rights, as a combined mechanism to foster state accountability in South Africa’s prison environment. This article further claims that the consistent judicial enforcement of socio-economic claims, read with a positive interpretation of the state’s obligation to protect the rights in the Bill of Rights, aids in defining and expanding state accountability. It is argued that this broadening of state liability, read in conjunction with the concept of interdependency between rights in the Bill of Rights, allows for the interpretation that the quality of prisoners’ socio-economic rights is considerably dependent on a prison environment which is not harmful to health and well-being. The case of Dudley Lee is utilised as a direct illustration of the interconnectedness between the state’s duty to protect and the judicial enforcement of socio-economic rights in promoting state accountability. This article also highlights the judiciary’s integral role in the pursuit of social justice, by maintaining an atmosphere of state accountability through positively interpreting Constitutional provisions.

The Role of Courts in the Enforcement of Socio-Economic Rights under the 2013 Constitution of Zimbabwe

The aim of this paper is to illustrate that courts play an important role in the domestic protection of socio-economic rights. In order to ensure that socio-economic rights are effectively protected and enforced, this paper identifies and discusses the framework for protecting socio-economic rights under the 2013 Constitution. The paper discusses the role of the courts in the domestic framework for protecting socio-economic rights under the 2013 Constitution. Secondly, the study discusses the role of the courts in the protection of socio-economic rights. The paper further identifies some of the major conceptual and practical challenges that are likely to arise in the adjudication of socio-economic rights. In that regard, the study attempts to come up with solutions meant to overcome the conceptual and practical challenges that are faced in the enforcement of socio-economic rights. For example, instead of adopting a purely legal-centric approach in interpreting socio-economic rights, it is suggested that courts should adopt a multidisciplinary approach taking into account founding values, historical background, political background, international human rights law norms and comparative law.

An argument for South Africa's accession to the optional protocol to the international covenant on economic, social and cultural rights in the light of its importance and implications

The universality, indivisibility, interdependence and interrelatedness of all rights have been universally acclaimed since the drafting in 1948 of the Universal Declaration of Human Rights. However, despite the doctrine of indivisibility, civil and political rights (CPRs) have for a long time been treated as being enforceable judicially at the national, regional and international levels, while socio-economic rights (SERs) have not. With the elaboration and adoption of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR), which mandates the Committee on Economic, Social and Cultural Rights (CESCR) to consider individual communications detailing the violations of SERs, the justiciability of SERs was also fully recognised at the international level.This paper undertakes an analysis of the importance and implications of the individual communications procedure under the OP-ICESCR and details some of the reasons why it would be beneficial for South Africa to accede thereto. The argument for accession by South Africa to the OP-ICESCR departs from the premise that South Africa's ratification of the ICESCR is imminent. Having signed the ICESCR on 3 October 1994, the South African Cabinet on 10 October 2012 decided that South Africa should ratify the Covenant. The authors argue that acceding to the OP-ICESCR will complement domestic protection and will confirm South Africa's global leadership in the field of justiciable SERs. Logic dictates that South Africa should confirm at the international level its position as a world leader on the national justiciability and legal enforcement of SERs, as indeed it has done during the drafting process of the OP-ICESCR. Accession to OP-ICESCR, the argument continues, will not detract from the country's sovereignty, especially in the light of the requirement of the exhaustion of domestic remedies, including the condition that applicants must show that they have suffered a "clear disadvantage". In any event, South Africa already has undertaken obligations as to SERs under regional human rights treaties that are equal to and in some respect more arduous than the obligations emanating from the ICESCR.