ECONOMIC, SOCIAL AND CULTURAL RIGHTS SHOULD BE IN THE ZAMBIAN CONSTITUTION, JCTR STUDY

December 2004

Economic, social and cultural (ESC) rights should be in the new Zambian Constitution and these rights can be there!  This is the conclusion of a new study launched today by the Jesuit Centre for Theological Reflection.  The study explains the meaning of these ESC rights and gives the reasons and the methods for assuring that all citizens can enjoy the rights.

Entitled, “Zambia’s Economic, Social and Cultural Rights: Why Should They be in the New Constitution,” the JCTR study addresses the problem that previous constitutions of Zambia have created in failing to insert these basic rights into the Bill of Rights.  Among the ESC rights most discussed for inclusion in the new Constitution are: the rights to education, health, food, safe water and sanitation, housing, employment, culture and a clean environment.

According to Simson Mwale, JCTR consultant who authored the study, “A coordinated civic education campaign should be launched by civil society and Church groups to help Zambian citizens understand the meaning of the ESC rights and the necessity and possibility of including these rights in the new Constitution.” 

In the current Zambian Constitution, the basic ESC rights are only mentioned in Part IX and described as “Directive Principles of State Policy.”  But these are merely advisory, lacking any juridical force.  Zambian citizens are not protected if the Government consistently fails to provide for the implementation of these rights through budgetary, administrative and judicial actions.

This problem has led to statements recently made by high-ranking government officials that citizens do not have a right to eat and that citizens do not have a right to education, since the Bill of Rights does not guarantee these basics.  That is why majority submissions to the Constitutional Review Commission (CRC) have consistently highlighted the need to put these rights clearly into the Bill of Rights.

The JCTR study, drawing upon work done by many constitutional experts, including Zambian lawyers and civil society groups, demonstrates how the ESC rights can indeed be included in the Constitution in a way that is both justiciable and practical.  The very helpful precedents set by the South African Constitution and court system show the ways that this can be done.  In several recent landmark decisions, the Constitutional Court of South Africa has addressed issues of such as housing, water and health care.

Mr. Mwale points to the anomaly that the Zambian government is bound constitutionally to budget annual payment of external debt service of US$ 120 million to US$ 150 million (even with the elusive HIPC relief), while is not constitutionally bound to budget payment for education, health, water, and other social services.

According to the JCTR, it is important to note the growing demand of Zambians for these rights to be clearly stated in the new Constitution’s Bill of Rights.  Submissions to the CRC from the Permanent Human Rights Commission, church groups, women’s organisations and other civil society groups have made clear the Zambian citizens’ desire to see the Bill of Rights to be inclusive of basic economic, social and cultural expectations.

Commenting on the current debates over the Constitution, Muweme Muweme, Coordinator of the JCTR’s Social Conditions Research Project, says: “So much discussion is going on now about the process of adopting the constitution, which is a crucial and understandable issue for the assurance of a widely accepted and fully inclusive document.  But the content of the constitution must also be discussed more intelligently and widely.  This JCTR study aims to promote that intelligent discussion.”