There have been considerable discussions on the content of the just released Draft Constitution with regard to the incorporation of Economic, Social and Cultural (ESC) rights in the constitution currently being reviewed. One vital question that needs to be re-emphasized is why ESC rights should be enshrined in the Bill of Rights?
What do these rights mean for Zambia? Are they really achievable? What are the ethical values that support the inclusion of ESC rights in the constitution? Now that the Draft Constitution includes them among the Bill of Rights, what is the way forward? These and many other questions provide a basis and/or an entry point in ensuring implementation and enjoyment of ESC rights in Zambia. As the content is being reviewed, an intelligent and critical analysis is vital at this moment in time.
It is quite interesting that the Draft Constitution takes into consideration the wide submissions made by the people of Zambia.
It is quite interesting that the Draft Constitution takes into consideration the wide submissions made by the people of Zambia. Such demands were made by several civil society organizations (CSOs), women’s organizations, the Oasis Forum, faith-based organizations and the Permanent Human Rights Commission.
In an effort to inform the general public on the necessity and possibility of enshrining ESC rights in the Bill of Rights, the Jesuit Centre for Theological Reflection (JCTR) made a major study entitled: “Zambia’s Economic, Social and Cultural Rights: Why Should They Be In The New Constitution?” In addition, the JCTR hosted the elaboration of a CSOs “Parallel Report” on ESC rights which was presented to the United Nations in Geneva in April 2005. The Report explained the ESC rights situation in Zambia and urged the government to consider incorporating ESC rights in the country’s new Constitution. This article relies heavily on these two studies for its reflections.
Undoubtedly, inclusion of ESC rights in the Draft Constitution recognizes that they are indispensable for human survival and are crucial to fighting poverty. A look at what ESC rights are is very important.
ECONOMIC, SOCIAL AND CULTURAL RIGHTS
ESC rights are a second category of human rights, e.g., the right to education. The first category includes civil and political rights, e.g. the right to fair trial. There are also Third category rights, e.g., the right to self determination. All of these rights are universal, indivisible and interdependent.
These human rights are understood as benefits, immunities, entitlements and respects that belong to every human being, for which the State as well as individuals must ensure are accessible to each and every category of people. Generally, they serve several purposes, such as the protection of human dignity, promotion of the person’s well-being, and the preservation of peace and justice.
While civil and political rights provide political conditions and group rights ensures joint activities of individuals, ESC rights mandate that social conditions are adequate for meeting physical, moral and biological requirements they thereby aim to ensure that everyone has access to resources, opportunities and services essential for an adequate standard of living.
Inclusion in the new Constitution’s Bill of Rights are: the rights to education, health, food, safe water and sanitation, housing, employment, culture and a clean environment.
Among the ESC rights most discussed in Zambia for inclusion in the new Constitution’s Bill of Rights are: the rights to education, health, food, safe water and sanitation, housing, employment, culture and a clean environment.
OBLIGATIONS OF THE STATE
The Zambian government has the obligations: to create an enabling environment within which people can gain access to these rights and improve their quality of life and well-being; to remove barriers and limitations that prevent residents from accessing and claiming these rights; and to adopt special measures to assist the disadvantaged and vulnerable to gain access to these rights. Such access is achieved over a period of time and depends upon the availability of resources.
As has often been argued, Zambia is not too poor or underdeveloped as not to respect, protect and fulfill human rights obligations, striving to ensure that Zambian citizens enjoy adequate food, education, health care and so on. However, as poor as Zambia is, it is not expected immediately to ensure the same level of ESC rights benefits that a rich nation, for example, South Africa, can afford.
This in practice means that Zambia has an obligation to use all appropriate means at the legislative level – by enshrining these rights in the Bill of Rights; administrative level – by developing policies that promote their enjoyment; and at the judicial level – by creating judicial remedies to ensure full realisation of ESC rights.
IMPORTANCE OF ESC RIGHTS
Realisation of ESC rights has direct implications for global and national development and has received increased public attention. Such attempts, as summarised in the 2000 United Nations’ Millennium Development Goals (MDGs), aim at positively addressing the crippling poverty and growing suffering that grips the world over.
States such as Zambia have committed themselves by 2015 to reduce by half extreme poverty and hunger; achieve universal primary education; promote gender equality and empower women; reduce child mortality; improve maternal health; combat HIV/AIDS, malaria and other diseases; ensure environmental sustainability; and develop partnership for development.
Moreover, the Zambian Government is currently preparing the National Development Plan (NDP) which should obviously seek to address poverty reduction in areas such as health, education, gender, water and sanitation, agriculture and good governance, as its predecessors, the Transitional National Development Plan (TNDP), 2002-2005, and the Poverty Reduction Strategy Paper (PRSP), 2002-2004. All these goals are but sharp articulations of documents that should aim at promoting the fulfillment of ESC rights globally and nationally.
As Civil Society for Poverty Reduction (CSPR) notes commitment to poverty reduction is not only an issue of resources but also an issue of priorities.
These basic human requirements are central to meaningful development and poverty eradication. If Zambia is to ensure that 100% of all budgeted resources for poverty reduction programmes do in fact reach the intended beneficiaries, one appropriate legal mechanism is to enshrine basic ESC rights in our Bill of Rights. This would mean allocated funds would in effect be constitutionally “ring-fenced” or protected. Such funds could not be diverted for other purposes, as has often been the case in the past. This is an urgent necessity, because as Civil Society for Poverty Reduction (CSPR) notes, commitment to poverty reduction is not only an issue of resources but also an issue of priorities.
Therefore, there is strong evidence that development goals ought to be understood as basic human rights and not mere policy directives. This can be realised if the ESC rights are in fact enshrined in the Bill of Rights of the Zambian Constitution.
ESC RIGHTS IN THE CURRENT ZAMBIAN CONSTITUTION
In the current Zambian Bill of Rights Part III, “Protection of Fundamental Rights and Freedoms of the Individual,” ESC rights are not explicitly provided for. However, some of these rights are mentioned within Part IX, “Directive Principles of State Policy,” in Article 112. This provides that government shall endeavour to provide: clean and safe water;equitable educational opportunities in all fields and at all levels; adequate medical and health facilities; decent shelter for all persons; and development of a person’s culture, tradition, custom or language that is not inconsistent with the Constitution.
Nevertheless, article 111 of the same Part IX clearly states that the“Directive Principles of State Policy” shall not be justiciable or be legally enforceable in any court, tribunal or administrative institution or entity. This means Zambian citizens cannot go to a law court and sue the government on the grounds that their right to education, for example, has been denied.
Indeed, as the current Constitution stands, the State is expected only to consider these rights in formulating and implementing its policies relating to development, law reform and application of law – but only in so far as State resources are able to sustain their application, or if the general welfare of the public so unavoidably demands, as may be determined by Cabinet.
But questions still remain: for how long shall Zambia excuse itself from achieving these basic rights for its citizens? Is the status given to “Directive Principles of State Policy” a permanent solution? The Draft Constitution provides us with an alternative.
ESC RIGHTS IN THE DRAFT CONSTITUTION
The Willa Mung’omba Draft Constitution includes ESC rights in Part VI: Bill of Rights, in articles 64 to 71. On the application of articles 65 to 71, article 64 clearly states that: “Parliament shall, by an Act of Parliament, take measures that are reasonable in order to achieve the progressive realization of the economic, social and cultural rights”. This means that ESC rights incorporated shall be realized gradually and not overnight.
Two other things worth scrutinizing are the “locus standi” (which determines the ability to go to court) and the enforcement mechanism (where one goes to seek for legal redress).
The rights included are: freedom of trade, occupation and profession (65), labour relations and pensions (66), social security (67), health (68), education (69), housing (70), food, water and sanitation (71). However, the rights in articles 70 and 71 have been formulated as “rights of access” and the other rights are “unqualified rights”.
Two other things worth scrutinizing are the “locus standi” (which determines the ability to go to court) and the enforcement mechanism (where one goes to seek for legal redress). According to the Draft Constitution, “where a person alleges that any ESC right is being or is likely to be contravened in relation to that person” (emphasis added), the person may apply for redress to the Constitutional Court. The “locus standi” includes “a group of persons or a person or institution acting on behalf of any other person” (article 86).
CONSTITUTIONAL STATUS IN BILL OF RIGHTS
The recommendation to enshrine ESC rights in the Bill of Rights means two things will definitely occur: Firstly, the government will be obliged to make clear efforts to meet these basic needs. This will ensure accountability and transparency by the government in its preparation of the National Budget and in its distribution of the country’s resources. Thus it will act as a criterion for government to prioritise development. Secondly, Zambian citizens will have a right to seek legal redress if these rights are denied or infringed upon. Claims can be made in court that the government is not fulfilling its constitutional obligations.
VALUE ADDED DIMENSION
The debate about the inclusion of ESC rights in the Bill of Rights is not simply an economic or political issue, but it is a profoundly moral issue. We can be helped to examine this aspect of the debate by taking note of the value-added dimension of policy analysis that the Churches’ Social Teaching (CST) offers. The Church’s emphasis on human rights arises from its concern for the dignity of every human person.
Development is transition from less human conditions to conditions that are more human.
For the CST, full enjoyment of ESC rights increases the capacity of each person to meet the basic needs and amenities necessary for a meaningful life. As such, every one is considered to have both a right and a duty to participate in the full range of activities and institutions of social life. But this is possible only in an environment that promotes policies sensitive to:
INTEGRAL DEVELOPMENT: that embraces the full social, cultural, political and spiritual dimensions of the person. Development is transition from less human conditions to conditions that are more human, where there are assurances of good health, fixed employment, better education and proper food security.
SOLIDARITY: that expresses the interdependence of people in effective relationships. No one person can realise full potential or appreciate the full meaning of human dignity unless that person shares life with others and cooperates on projects that hold the promise of mutual benefit.
SPECIAL CONCERN FOR THE POOR: or what is commonly called the “option for the poor.” This means that all programmes and policies – as well as personal actions – should have as one of their necessary criteria for evaluation the question: “What is the impact on the poor?” Pro-poor orientations must be a priority.
LOVE AND JUSTICE : love is an absolute demand for justice, because charity must manifest itself in actions and structures which respect and protect human dignity and rights and facilitate human development. Meaningful commitment towards the promotion of ESC rights is one of the most important expressions of moral integrity in actions designed to promote the good of one’s neighbour. Such an action on behalf of justice is a participation in the transformation of the human family and liberation from every oppressive situation.
COMMON GOOD: that enables social conditions wherein each person both benefits from and contributes to the fullness of life. This means, for example, that when people are without a chance to earn a living, are hungry or are homeless, they are being denied their basic rights and the promotion of the common good is being blocked.
PRECEDENTS
Serious comparative study of what is contained in various Constitutions is vital in any constitution-making process especially as we react to the Draft Constitution. What kinds of ESC rights do we want? How should they be formulated? What categories of rights do we need to include or exclude? Since rights are not really for writing but for claiming, what kind of enforcement mechanism do we need?
The Draft Constitution’s contents on ESC rights gives us Zambians an opportunity to strive to move from the current status quo of deprivation of basic essentials to a more humane condition.
Zambia can learn from precedents set by other African countries like South Africa, Malawi and Uganda, whose Constitutions contains ESC rights and allows citizens to have legal redress for the protection of these rights. That is, giving aggrieved citizens access to recourse through the courts of law.
This means first putting ESC rights and remedies clearly in the Constitution. Then there is the need to broaden the legal definition of “locus standi”. Moreover, the enforcement mechanism for ESC rights must be established by including within the Judiciary a special Constitutional Court.
WAY FORWARD
The Draft Constitution’s contents on ESC rights gives us Zambians an opportunity to strive to move from the current status quo of deprivation of basic essentials to a more humane condition.
It is important to note that the non-justiciable character of the “Directive Principles of State Policy” found in Part IX of the current Constitution is indeed a major hindrance to the full realization and enjoyment of ESC rights. Unless this issue of justiciability is adequately addressed, ESC rights will remain in a legal limbo.
As expressed by many CSOs and the Churches, if we are to achieve intended and desirable development goals, the full guarantee and protection of ESC rights must be in the Bill of Rights, which is the heart of any Constitution. Hence, there is need for the government to facilitate a Referendum Process to allow for the amendment of Part III (Bill of Rights) of the Constitution as demanded by article 79(3).
To promote and support the inclusion of ESC rights within the Constitution, several strategic plans should be implemented collectively by the government, the Church and Civil Society. In order to give the constitution-making process the respect that it deserves and the durability it requires, the following points should be taken into consideration:
INCLUSIVENESS: All the citizens of Zambia should as much as possible be part of the whole process from its beginning to completion. A good Constitution is one that is broad based, inclusive, open and allows every citizen to participate in its building process. There is a moral demand that involvement should not be an option, preserve or monopoly of a few. Hence, there is need for public debates at all levels of society and for the instruments of Constituent Assembly and Referendum.
OWNERSHIP: An inclusive constitution-making process enhances wide participation at grass-root levels, and ensures that people pledge to support its contents as committed stakeholders. Furthermore, citizens become proud of it, own it and are ready to defend its cause because it truly reflects a fundamental national consensus. Therefore ESC rights claims must also be owned and championed by the people who are the ultimate custodians of the laws of the land.
SENSITISATION CAMPAIGN It is evident that constitutional changes are much more than revising inadequate words on paper, but rather changing the mentality and value systems of the people. Good civic education is necessary because a society that is aware of its basic rights is able to challenge the status quo of continual deprivation of these rights and is also ready to stand together in fighting for the enshrinement of these rights in the Bill of Rights.
A good Constitution is one that is broad based, inclusive, open and allows every citizen to participate in its building process.
COLLABORATIVE ADVOCACY: The Government, the Church and the Civil Society have a responsibility to engage in a wide campaign of disseminating information on ESC rights to reach all the corners of the country. Advocacy through organised national, district and local discussions must be a priority. Central to this effort must be translation of materials into local languages.
CONCLUSION
A concern for the inclusion of ESC rights is a moral and ethical demand on the citizens of Zambia, in order to promote the fullness of human life within a just society.
In conclusion, all appropriate steps must be taken immediately to assure that the full range of economic, social and cultural rights are enshrined in the new Zambian constitution, with proper mechanisms for their effective implementation and full enjoyment.
Simson Mwale
Lusaka
