Should social, economic and cultural rights be protected?

The first generation of human rights, which were the first to be recognised in international law, are those concerned with “liberty”, i.e. with the right to participate in political life. Examples of these rights are the rights to personal liberty and the protection of law, freedom of association and speech, and the right to vote in elections.

The second generation of rights are those directed at bringing about equal treatment for all members of society. These rights are also called social, economic and cultural rights, and they include such rights as the right to work, to free choice of employment, to just and favourable conditions of work, the right to rest and leisure, the right to education, and the right of different cultural groups to maintain their cultural identity and practices, among other things.

The third generation of rights are those directed at “fraternity”, i.e. at ensuring social harmony. They include:

– the right to a healthy environment, including the right to clean water;

– the right to natural resources;

– group and collective rights;

– the right to self-determination; and – inter-generational rights.

SEC rights in new constitution

There is a strong moral argument for protecting SEC rights in the Declaration/Bill of Rights in our new constitution. Most Zimbabweans face hardship and poverty throughout their lives. To them, first-generation rights such as freedom of expression and association may be less important than social and economic rights such as the right to adequate housing and health care. The right to be legally represented by a lawyer of one’s choice, for example, is not much use to someone who cannot afford to pay the lawyer’s fees. If the new constitution does not protect at least some basic SEC rights, it is liable to be seen as a document drawn up by members of the political and social élite for their own benefit.

How would SEC rights be enforced?

This is not an easy question to answer, firstly because it is not always clear who has a duty to provide SEC rights and, secondly, because it may be financially ruinous for the country to provide them.

Whose duty will it be?

Giving someone a right to something involves imposing a duty on someone else to provide that thing. Constitutional rights are normally regarded as “vertical”, i.e. enforceable against the State, and not “horizontal”, i.e. enforceable by one individual against another. This is the case with most SEC rights: the State is expected to provide the services and facilities needed to give effect to the rights. But there may be grey areas, where the responsibility for providing the right is not clear.

How far should SEC rights be enforceable?

Even if SEC rights are set out in the new constitution, it may not be possible to give full effect to them, given the country’s slender financial resources. As an example, take again the right to education. Zimbabwe has done better than its neighbours in providing primary school education to its children, but providing all its children with secondary and tertiary education would overstretch its resources.

Another problem with enforcing SEC rights if they are contained in the new constitution is that, like all other constitutional rights, they would have to be enforced through the courts. The courts would have to balance competing claims of fundamental social values. Judges and courts lack the political legitimacy and institutional competence to decide such matters. Furthermore, the courts cannot raise revenue; that is the province of the legislature.

The how to

Given the difficulties in enforcing constitutionally-protected SEC rights, it is not surprising that the constitutions of countries throughout the world adopt different approaches towards these rights.

The constitutions of some countries — India, Ireland and Namibia, for example — set out SEC rights, but state specifically that they are not enforceable through the courts. Instead, the rights are stated to be directive principles of social policy or good governance which must guide the Legislature and the Executive in making and applying laws.

Other countries’ constitutions do have enforceable economic and social rights, notably South Africa, Thailand, Indonesia, Afghanistan, Brazil, Argentina, Bolivia, Ecuador, South Korea, Cuba, Kenya, Uganda, and Ethiopia.

Most of the SEC rights set out in the South African Constitution are hedged with limitations which relate to reasonableness and the availability of funds. These limits are very important because they allow the Constitutional Court to give due weight to the dichotomy between a stated right — for example, “Everyone has the right to have access to adequate housing” — and the State’s inability to satisfy that right immediately. If there were no such limits there would probably have been a clash between the executive and the legislature, on the one hand, and the judiciary on the other.

Zim’s new constitution

The makers of the new Zimbabwean constitution would do well to follow the lead of South Africa in its treatment of SEC rights. Zimbabwe faces many of the same socio-economic problems as South Africa and has fewer resources to deal with them.

Some provision must be made for SEC rights in the new constitution, if it is to be accepted by the broad mass of the people as “their” constitution. However, if the new constitution makes those rights unenforceable, the needy sections of society — the majority of our people, in other words — are likely to reject the constitution as irrelevant at best and fraudulent at worst. Making those rights enforceable is feasible, as South Africa has shown, and does not necessarily lead the courts to intrude into areas of policy which are the preserve of the Legislature and the Executive. It might, however, allow people to ensure, at least to a limited extent, that the government expends its resources wisely and in their interests.

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