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Implementing the Socio-economic and Cultural Rights in Nigeria and South Africa: Justiciability of Economic Rights

Document Cited authorities 5 Cited in Related
Vincent
DOI10.3366/ajicl.2019.0291
Date01 November 2019
Published date01 November 2019
Author
Pages564-587
INTRODUCTION

Socio-economic and cultural rights (SERs) are the general guide for a state to regulate the welfare and standard of living of citizens.1 A successful invocation of SERs2 is attained where every citizen enjoys an adequate standard of living, adequate food, clothing and housing, and a general improvement in living conditions.3 The article examines the influence of the requirements of international instruments, which constitute the historical background of the socio-economic rights and the Directive Principles of State Policy (DPSP) in South Africa and Nigeria. In that light, Article 55 (a) and (b) of the Charter of the United Nations (UN) mandates the organisation to promote higher standards of living, full employment, and conditions of economic and social progress and development and the solution of international economic, social, health and related problems as well as international cultural and educational cooperation.4

In 1966, the International Covenant on Civil and Political Rights (ICCPR),5 otherwise recognised as civil and political rights (CPRs), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), herein referred to as economic rights (SERs) were adopted. States' obligation to enforce SERs is regulated by the ICCPR and the ICESCR, which were an improvement on the Universal Declaration of Human Rights (UDHR).6 At the regional level, the African Charter is one of the constituents of the African Human Rights System,7 and the African Union (AU) ensures that member states eradicate poverty, generate employment and observe all other rights,8 with a view to attaining development in such states.9 At the state level, Nigeria ratified and domesticated the African Charter through the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act.10 In 1995, South Africa signed the African Charter and the same was ratified on 9 July 1996.11

The Preambles to the Constitutions of Nigeria and South Africa outline the political antecedents of each country and set the pace for a transformative focus on improved quality of life for all citizens and for the exploration of the potential in each person.12 The 1999 Nigeria Constitution classifies CPRs under Chapter IV and has the Fundamental Objectives and Directive Principles of State Policy (DPSP) in Chapter II.13 The DPSP guides the government in power on how to meet the citizens' needs on the political, economic, social, educational and other matters,14 and it is the equivalent of the SERs adopted in South Africa under its Bill of Rights.15 The article then examines the classification of the DPSP and the SERs in Nigeria and South Africa respectively, and the effect on the justiciability of such provisions in either country.

The article draws on the comparative experiences from Nigeria and South Africa on rights adjudication driven by legislation and judicial activism on the attainment of qualitative life for the citizens of both countries. The Constitutions of Nigeria and South Africa recognise SERs in the Preambles to those Constitutions. This seeks to promote good government and welfare for all persons as well as improvement in the quality of life of all citizens.16 The article then considers the effect of the entrenchment of these SERs in the constitutions on the discharge of the state obligation to respect, to protect, to promote and to fulfil the SERs.17

SERs apply and bind all organs of government as they have an obligation to observe the provisions.18 The state is under an obligation to enforce SERs so as to enhance the citizens' enjoyment of rights.19 The obligation to respect requires the state to refrain from violating the rights and freedoms of right-holders.20 The article examines the Grootboom case,21 with a view to establishing the state's obligation to protect citizens' welfare and standard of living.22 It argues that rights are protected when the states put in place protective laws, protective institutions and the relevant infrastructure.23 The mandate of the states to fulfil SERs is realised by taking steps,24 particularly by creating a conducive environment for a citizen to be able to cater adequately for his family.25 The article thus investigates whether the political organs of states in Nigeria and South Africa show the utmost commitment to the realisation of SERs.26 It further considers whether the citizens enjoy adequate access to justice in view of the influence of culture,27 the cost of litigation, the speed of judicial proceedings the and procedural context.28 The issues are further considered in terms of their effect on the extent of enforcement of SERs and the quality of lives, which citizens of Nigeria and South Africa have.

This article explores greater enforcement of SERs through judicial activism in Nigeria and South Africa, and as such it examines the attitude of the courts through the cases on their justiciability. It investigates Article 45(2) of the African Charter and the Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria, which make all rights justiciable before the African Commission.29 The article argues that the Constitutional Court in South Africa in the above regard went an extra mile in the Modderklip case,30 as it ordered the state to make funds available for the resettlement of squatters in protection of their right of access to adequate housing enshrined in section 26 of the CSA. The article then draws a conclusion that for socio-economic and cultural rights to transform into actual entitlements, the courts in Nigeria and South Africa have to be active judicially.31

 FEATURES OF THE POLITICAL AND ECONOMIC RIGHTS

For human beings to be free from fear and want, the Preamble of the ICESCR provides that everyone has to enjoy socio-economic and cultural rights as well as civil and political rights.32 Features in the two sets of rights determine how a set of rights is enforced. Political rights, otherwise known as human rights, are a set of rights which confer rights and obligations on citizens.33 Amparo Tomas defines human rights as ‘universal legal guarantees that belong to all human beings and that protect individuals and groups from actions and omissions of the State and some non-State actors that affect fundamental human dignity’.34

The writer further identifies the following as attributes of human rights: (a) that they are rooted in and exist for fundamental human dignity; (b) that they are universal and belong to all human beings; (c) that they are legal guarantees against state actions and omissions; and (d) that they protect both individuals and groups.35 CPRs are known as first-generation rights and create the ground rules for democratic government through provisions on the right of equality before the law, freedom of expression, movement, association, right to life, liberty and property – all are designed to attain political activities without any coercion.36

The features of CPRs assist in distinguishing the rights from DPSP, which guide a government in meeting the essential needs of its citizens in political, economic, social, educational and other matters.37 The DPSP, however, have no legal guarantees against state actions and omissions.38 SERs are used interchangeably with the DPSP as they cover the same set of rights. D. M. Davis thus submits that SERs have jurisprudential similarity to CPRs but politically are different from them. These are also called first-generation rights.39 This is because the DPSP or SERs cannot compel a government to implement particular provisions.40

The efficacy of SERs is as such contingent upon available resources,41 while political and civil rights are less dependent on any material or financial resources for their enforcement.42 Political and civil rights, however, do not require the government to commit substantial resources before such rights are enforced.

As a result, SERs require the state to undertake positive action, which is contingent on its budgetary provisions.43 They are thus regarded as programmatic and entail that states have to take steps, individually and through international collaboration, assistance and cooperation, legislative measures and other appropriate means subject to its maximum available resources.44 Consequently, SERs may not be realised immediately.45 To Stanley Ibe, Article 2 of the ICESCR as such concedes to states the discretion to enforce SERs at the right standard and timing.46

There is, however, a reciprocal linkage between SERs and CPRs and this emphasises that without the former rights the latter cannot exist in a meaningful way.47 Davis, however, contends that the welfare and quality of living conditions for citizens are not met without accompanying SERs.48 To Udu,49 enjoyment of socio-economic rights by people, particularly the less privileged that have no food, clothing or shelter, translates to enjoyment of civil and political rights.50 The rights are thus intimately linked, notwithstanding that the enforcement mechanism in respect of each category of rights differs. The enforcement of SERs has to do with available state resources, while this is not essential in enforcing CPRs.51 Nevertheless, CPRs as well as SERs are thus interrelated and mutually complementary.

The rights jurisprudence and unification of political and economic rights, which is advocated in the Preamble to the African Charter, has been adopted by South Africa.52 Given the positive link to the two generations of rights, there is the unification of SERs and CPRs under the Bill of Rights of South Africa.53 The classification and justiciability of economic rights in South Africa has, however, been established in the constitutional provisions and decided cases54 and this makes SERs enforceable in South Africa.55

The classification of human right is, however, different in Nigeria. SERs – otherwise known as the Directive Principles of State Policy – are...

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