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Shifting the Matrix from Legal Passivity to a New Domestic Legal Order: Towards the Justiciability of Economic, Social and Cultural Rights in Cameroon

Document Cited authorities 2 Cited in Related
Vincent
Date01 May 2017
DOI10.3366/ajicl.2017.0189
Pages176-198
AuthorAvitus A. Agbor
Published date01 May 2017
INTRODUCTION

This article argues that the consignment of economic, social and cultural rights (ESCR) as ‘second-generation rights’,1 making them play second fiddle to civil and political rights (classified as ‘first-generation rights’),2 and subjecting their realisation to the availability of a state's resources,3 do in part, account for the slow progress that has been made in domesticating and enforcing these rights within states. More specifically, with regard to developing countries, the International Covenant on Economic, Social and Cultural Rights (ICESCR) gives an unfettered blessing to such an attitude as it provides that:

[d]eveloping countries, 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 to non-nationals.4

Cameroon is a developing country situated in the central part of Africa. With a population of about 22 million people, the economic conditions of the majority of the people are not so different from many other African countries. Such conditions include over 70 per cent of the population are trapped below the poverty line, transmissible diseases are rife, the costs of education are fast rising and becoming unaffordable, health infrastructure is rudimentary and outdated, medical facilities are beleaguered with numerous resource problems which in turn affects access to quality healthcare, there is an increase in the tide of corruption perpetrated by top administrative political actors5 and the realisation of economic and social rights is selective and influenced by factors such as political attitudes and choices made by the communities in question. As this article argues, such discriminatory practices offend the normative framework of international human rights in general and the ICESCR in particular.6 In the past decades, academic scholarship on and political attitudes towards ESCR seem to be influencing the legislative landscape in most developing countries in Africa. This has been evidenced by the increase in the number of states that have given legislative recognition to ESCR as well as the creation of the necessary institutional mechanisms aimed at promoting and protecting them.7 Such steps, as argued, enhance the justiciability of ESCR.8

As some African countries are taking steps towards the domestication of the ICESCR by entrenching it in domestic legislation such as the Constitution,9 progress towards justiciability is being made. Evidently, South Africa has become a commendable example: beyond entrenching human rights in the Constitution, the judiciary has been bold in interpreting the nature, content and limits to the rights contained therein, including ESCR, even at a time that it had not ratified this UN instrument.10

At the continental level, the African Charter on Human and Peoples’ Rights (ACHPR)11 is the instrument that defines the content of, and establishes the institutional mechanism for the protection of, human rights (civil and political as well as ESCR) in Africa.12 Cameroon is a State Party to both the ICESCR and ACHPR.13 Given its ratification of these two instruments, numerous obligations are imposed on it. In order to fulfil the country's treaty obligations and give effect to the substantive ESCR contained in these instruments, it is argued that Cameroon must depart from being an actively passive legal landscape where ESCR either unrecognised, unenforceable or selectively implemented, and move towards a legal terrain where the legislative framework and institutional mechanisms make these rights recognised, enforceable and realised by everyone. To achieve this, it is argued that Cameroon, like some African countries, must start by entrenching ESCR in domestic legislation.14 This move will kill two birds with one stone: first, it makes ESCR understandable by the judges who interpret them, and secondly, they become accessible to the ordinary citizen who stands the risk of being a victim. Such domestic legislation must speak to some specific details on the legal nature of ESCR: firstly, the right; secondly, the normative framework on how to interpret such rights; thirdly, the forum where violations can be redressed; fourthly, access to such forums; and lastly, the remedies in place for victims of such violations. If these fundamental foundational pillars are put in place, then, justiciability of ESCR will be achieved. Through justiciability, the courts will play a dual pivotal role of protecting and promoting ESCR. In addition, an impartial, independent and competent judiciary will subject the state's policies and priorities to scrutiny, thereby achieving accountability and transparency. It is hoped that such recommendations will accord the State the opportunity to give some meaningful recognition to, and enforceability of, ESCR like it has done with civil and political rights in Cameroon.

 DELINEATING THE LEGAL AND ESSENTIAL CHARACTER OF ESCR

ESCR is a phrase that has been in usage for quite a long time. In Africa, focus was made on civil and political rights, especially as they were prescribed by Western benefactor states to be the panacea to Africa's endemic problems. Coined within the notion of good governance, it was believed that through different forms of political participation, states would be bailed out of the pangs of underdevelopment. Clamours for democracy that swept across African states in the postcolonial era, especially in the 1990s were marked by calls for national conferences that would serve as platforms for key political actors within a state to consider and debate the state's political and economic philosophy, policy and destiny. Added to this were demands for press freedom, freedom of association, liberty and security of the person, the decriminalisation of political offences and the conduct of regular intermittent elections into some offices. This spate of demands that were uttered by nationals of numerous African countries focused on the transformation of the political culture and access to political institutions so that ordinary citizens could engage meaningfully in government. The inadvertent effect of this attitude was the neglect of ESCR which, unfortunately, were relegated to the sphere of moral and political ambitions devoid of enforceability. As such, even though most of these African states had ratified both the ICESCR and the ACHPR, such actions by the masses downplayed the very nature of ESCR. In the aftermath of these political demands, some significant developments have occurred which have gradually begun to alter the public perception of ESCR. The establishment of a Committee on ESCR that serves as a compliance mechanism obliging states parties to report on what progress has been made on the realisation of these rights signalled their legal validity, recognition and the need for compliance.15 The establishment of the African Commission as the institution with the mandate to ‘promote human and peoples’ rights and ensure their protection in Africa’ meant that it would serve as a body that would entertain communications on violations of all rights.16 Over the years, as communications to the African Commission have not been limited to civil and political rights only, its jurisprudence now stands as eloquent testimony that ESCR are not only valid and recognised, but are worthy to be accorded legal protection by the institutional mechanisms in place.17 Thirdly, as in post-apartheid South Africa, the inclusion of ESCR into the Constitution and putting them on an equal footing with civil and political rights meant that ESCR are worthy of protection by the relevant institutional mechanisms.18 This is a laudable example worthy of emulation by other African states. In addition, judicial interpretation of these rights in general, and more specifically ESCR, is not only priceless jurisprudence with regard to the legal recognition accorded them but also has highlighted the role of the judiciary in the promotion and protection of human rights. Given South African courts’ interpretation of ESCR as stipulated in the Constitution of South Africa, ESCR have gained sufficient momentum as a domain in legal scholarship that is worthy of exploration. With such emerging trends, it becomes important to consider and assess the attitudes and approaches that are currently being developed by other African states in order to give recognition to, and achieve fulfilment of, ESCR. As this article focuses in on Cameroon's legislative framework and institutional mechanisms, it makes the case for the justiciability of these ESCR. As discussed below, the very nature of justiciability itself necessitates the establishment of some fundamental pillars which are discussed below. However, before delving into this, it is important to revisit some basic questions: first, what are ESCR, and secondly, what distinguishes ESCR from civil and political rights in terms of relevance and their impact on a person's life, dignity and worth?

What Are ESCR?

On the nature and character of ESCR, Viljoen's description is accurate, brief and concise. He sees ESCR as entitlements that ‘give rise to the shared concern of ensuring societies where everyone has a minimum decent standard of living consistent with human dignity (the “bare necessities of life”).’19 The ICESCR is the United Nations’ human rights instrument that stipulates the substantive content of these rights. Per the ICESCR, ESCR include the following: the right to work,20 the right of everyone to the enjoyment of just and favourable conditions of work,21 the right of everyone to form trade unions and join the trade union of his choice,22 the right of everyone to social security,23 the provision of the widest possible protection and assistance to the family,24 the right of everyone to an adequate standard of living for himself and his family,25 the right of everyone to the enjoyment of the highest...

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