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Justiciability of Socio-economic Rights in Tanzania

Document Cited authorities 5 Cited in Related
Vincent
Author
Published date01 October 2015
DOI10.3366/ajicl.2015.0127
Pages359-382
Date01 October 2015
INTRODUCTION

Socio-economic rights have been broadly defined to include the right to work, the right to social security, the right to family life, the right to an adequate standard of living, the right to health and the right to free education.1

Articles 6–14 of the International Covenant on Economic, Social and Cultural Rights 1966. See also C. Fombad, ‘An Overview of the Constitutional Framework of the Right to Social Security with Special Reference to South Africa’, 21(1) African Journal of International and Comparative Law (2013): 1–31, at p. 30; and B. R. Dinokopila, ‘The Justiciability of Socio-economic Rights in Botswana’, 578 Journal of African Law, (2013): 108–25.

The right to work embraces every person's right to have access to work and that work should be under just and favourable conditions leading to decent work and the worker's right to form and join trade unions.2

Articles 6–8 of the ICESCR.

 The right to family life encompasses protection of children and provision of paid parental leave, while the right to health embraces highest attainable standard of both physical and mental health.3

Articles 10 and 12 respectively of the ICESCR.

 Further, the right to adequate standard of living include the right to food, water, housing, clothing and continuous improvement of people's living conditions, whereas the right to education hinges on free universal primary education, availability of secondary education and accessible, higher education.4

Articles 11, 13 and 14 of the ICESCR.

As far as the right to social security is concerned, it envisages provision of social security benefits.5

Article 9 of the ICESCR. See also S. Liebenberg, Children's Right to Social Security: South Africa's International and Constitutional Obligations, Community Law Centre (2002).

Social security encompasses measures aimed at guaranteeing an individual or group, on a contributory or non-contributory basis, protection against unforeseeable risks.6

For more details on conceptualisation of social security see M. P. Olivier et al. (eds), Introduction to Social Security, LexisNexis Butterworths (2004) and D. Kasente, Gender and Social Security Reform in Africa, International Development Research Centre (1997), at p. 2.

 Social security is composed of social insurance and social assistance. Social insurance refers to designed programmes for mitigating or coping with social risks, such as the need for medical care and family care and, in the event of illness, disability, work injury, maternity, unemployment, old age and death through provision of income support.7

http//www.adb.org/socialprotection/insur.asp (accessed 12 October 2013).

 Conversely, social assistance denotes provision of social services, social grants, social relief, and benefits in cash or in kind, financed by the state subject to qualifying criteria.8

M. P. Olivier and E. R. Kalula, ‘Legal Framework and Scope of Coverage’, in M. P. Olivier et al. (eds), Introduction to Social Security, LexisNexis Butterworths (2004), pp. 33–53, at p. 38; F. Howell, ‘Social Assistance: Theoretical Background’ in I. Ortiz, (ed.), Social Protection in Asia and the Pacific, Asian Development Bank (2001), pp. 257–306, at p. 258; and Committee of Inquiry into a Comprehensive System of Social Security for South Africa, Approach to a Comprehensive Social Security Provisioning in Transforming the Present – Protecting the Future (2002), at p. 36, available at http://www.cdhaarmann.com/Publications/Taylor report.pdf (accessed on 2 October 2013).

 This paper discusses the provision of social security rights in Tanzania and its enforceability although the words socio-economic rights are sparingly used because provision of the latter follows a similar trend.9

The United Republic of Tanzania consists of two parts, Mainland Tanzania and Zanzibar. The Constitution of the United Republic of Tanzania lists union matters and socio-economic rights is not one of them. This paper therefore discusses the provision of socio-economic rights in Mainland Tanzania. The use of Tanzania therefore is in this context.

 The main thrust of the paper is that socio-economic rights are no lesser human rights and, as Langendonck rightly puts it, ‘[o]ne should not receive as a gift, what one is entitled to as a right’.10

J. Van Langendonck, ‘The Meaning of the Right to Social Security’ in J. Van Langendonck (ed.), The Right to Social Security, Intersentia, Antwerpen – Oxford (2007), pp. 3–12, at p. 11.

 PROVISION OF SOCIO–ECONOMIC RIGHTS IN TANZANIA

Social security provisioning in Tanzania is characterised by low coverage, inadequacy of social security benefits and lack of coordination arrangements between the multiple schemes in existence.11

For more details see T. Ackson, Social Security Law and Policy Reform in Tanzania with Reflections from the South African Experience, LAP – Lambert Academic Publishing (2009).

Social security schemes are established by law, each one stating which category of workers it covers, and currently covering less than 10 per cent of the total working population.12

For more details on coverage, see Fombad, supra note 1, at p. 4 and Ackson, supra note 11.

 Amidst these challenges, the government is obliged to ensure that socio–economic rights are availed to its citizenry International obligations

Socio-economic rights emanate from international, regional and national legal instruments obligating Tanzania to provide socio-economic rights to its citizenry. At international level, the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR), which Tanzania has ratified, requires States Parties to ‘recognize the right of everyone to social security, including social insurance’.13

Article 9 of ICESCR. Tanzania ratified the ICESCR on 11 June 1976.

The ICESCR requires States Parties to adequately protect people against risks such as sickness, disability, maternity, employment injury, unemployment, old age, death and provision of health care to those who cannot afford.14

See paragraphs 1–4 of CESCR General Comment no. 19 on the right to social security (Article 9 of the Covenant) adopted at the thirty-ninth session of the CESCR, on 23 November 2007 (contained in Document E/C.12/GC/19 of 4 February 2008). See also the ILO Social Security (Minimum Standards) Convention 1952, no. 102.

 The Convention on Rights of Persons with Disabilities 2006 (CRPD) and the International Convention on the Rights of the Child 1989 (CRC), both ratified by Tanzania, provide for social protection to people with disabilities and children, respectively.15

Ratified on 10 November 2009 and on 10 June 1991, respectively. See also the People with Disabilities Act 2010 and Law of the Child Act 2009, which domesticate the two conventions.

Recognition of this right by the ICESCR emanates from the International Labour Organisation (ILO) Declaration of Philadelphia 1944 in which the ILO obligates itself to further ‘the extension of social security measures to provide a basic income to all in need of such protection and comprehensive medical care’.16

Article 3(f) of the Declaration concerning the aims and purposes of the International Labour Organisation (Declaration of Philadephia) 1944.

Considering the commitment of the ILO, and the social security needs of the majority of people after the Second World War, the United Nations, through its United Nations Declaration of Human Rights 1948 (UDHR), declared that ‘every one, as a member of society, has the right to social security and is entitled to realization…in accordance with the organization and resources of each State…’.17

Article 22 of the UNDHR. See also Article 25(1) of UDHR which states that ‘everyone has the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control’. See also Fombad, supra note 1, at p. 8.

Since the UDHR recognises the economic and resource endowment disparities, the ICESCR follows a similar approach by promulgating the principle of progressive realisation of social security rights. Article 2 provides that States Parties pledge ‘to take steps … to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures'. Developing countries are given more room to manoeuvre; ‘with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant’.18

Article 2(3) of ICSECR.

As mentioned later in this article, these ‘claw back’ clauses have been used negatively in Tanzania leading to regressive realisation of social security rights to the populace. Of more concern is the fact that Tanzania's regressive actions are carried out through law that, according to the Committee on Economic, Social and Cultural Rights (CESCR), is an important and indispensable means towards realising the social security rights through establishing enforceable rights with judicial remedies but is a tool that resource constraints may not be able to limit.19

See paragraphs 3–6 of CESCR General Comment no. 3: The Nature of States Parties' Obligations (Article 2, paragraph 1, of the Covenant) adopted at the Fifth Session of the CESCR, on 14 December 1990 (contained in Document E/1991/23). See also the Free Encyclopedia ‘International Covenant on Economic, Social and Cultural Rights’, available at www.wikipedia.com (accessed 12 October 2013) where it is stated that ‘[t]he Committee on Economic, Social and Cultural Rights regards legislation as an indispensable means for realising the rights which is unlikely to be limited by resource constraints. The enacting of anti-discrimination provisions and the establishment of enforceable rights with judicial remedies within national legal systems are considered to be appropriate...

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