Enshrining rights to food, health and housing

One would be forgiven for thinking that about half of Kenya’s Cabinet was in New York this past week. Ostensibly, the ministers, assistant ministers and various official hangers-on were attending the United Nations General Assembly Special Session – this year focused on climate change. In truth, they, like most of the world, were there because this was the American president’s first UNGASS – one which he used to place the Americans back on a multilateral path.

Of course, they could not all access the UN. President Obama’s presence meant that access was tighter than ever before. It seemed that all of New York’s police force was stationed around the UN. Together with a host of other security service people, replete with the black and black-windowed cars and ubiquitous ear phones. The notoriously rude New York taxi drivers were not amused – traffic was crazy and diversions abounded. All to keep those with no business at the UN. And, in some cases, even those with business at or around the UN away.

By all accounts, Barack Obama’s speech was well received by his peers and the global media. While he did not say much new on climate change, he clearly acknowledged the unilateral path followed by the previous administration had done little to endear the United States to the rest of the world. He also acknowledged that the unilateral path was one that could no longer feasibly be followed – given the ever-present imperatives for constructive engagement on a host of global security issues. Interestingly, however, his speech was far less well received by the American media. The right trotted out all of its usual paranoid nonsense about American sovereignty. And the centre was lukewarm – while criticising the right’s now apparently instinctive knee jerk reaction to anything that Obama does or says. An indication of just how parochial large swathes of the American population are – despite the fact that any American has more opportunities to access information about and from the rest of the world than the average citizen elsewhere. Life’s ironies.

Away from Obama’s near celebrity status and the global focus on his every move though, the UNGASS also saw the opening for signatures of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. One of the key international human rights treaties, the ICESCR was pushed for largely by newly independent states emerging from colonialism. For those states, which shared the independence clarion call to ‘end poverty, illiteracy and disease’ believed that the human rights encapsulated in the other key international human rights treaty, the International Covenant on Civil and Political Rights, would only have meaning if accompanied by real changes in citizens’ material condition and realities. The ICESCR therefore covered human rights related to food, health, housing, labour and so on.

But, recognising that states’ obligations to provide for this set of human rights would obviously be constrained by states’ financial capacities, the ICESCR allowed for ‘progressive realisation’ – meaning that the human rights it covered could be gradually realised over time. It is this allowance that lead to the widespread belief that these human rights are not ‘justiciable’ – subject to strictly legal claim and protection.

What this meant in practice, however, was that these human rights have largely been treated as add-ons – not as entitlements. In addition, with time, it became clear that violations of these human rights can be committed not just by acts of omission – the persistent failure to plan for and finance their realisation as ‘development’ or as social services. Violations of these human rights routinely happen also as acts of commission – the equally persistent failure to take them into account when deciding, for example, to evict smallholders.

But now, finally, after years of work by the global human rights community, an Optional Protocol to the ICESCR has been elaborated and was opened for signature last week. The Optional Protocol establishes two things: An individual and group complaints process, as well as an inquiry process. The latter will be particularly relevant where violations of the human rights covered by the ICESCR are believed to be both ‘gross and systematic.’ The import of the Optional Protocol is thus clear. Economic, social and cultural rights are justiciable legal entitlements. States’ obligations to promote and protect them is both re-affirmed and extended. And, most importantly, the possibility for redress through legal remedies for those individuals and groups – particularly minorities – now exists at the international level.

This is a huge normative step forward. And one that should be celebrated. While only eight states parties to the ICESCR formally signed onto the Optional Protocol last week, an additional 12 committed to doing so. And only 10 full ratifications are needed for the Optional Protocol to enter into force. Africa, as the historical driving force behind the ICESCR, should reclaim that historical position by being first in line to provide those ratifications. ‘Poverty, illiteracy and disease’ still plague us, more than 50 years following the liberation of the first African country from colonialism. That is more than a disgrace – regardless of the reasons, both internal and external, for that being the case. But there are many ways to skin the proverbial cat – and legal protection is one of them. Africa should commit, at the very least, to this.

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* This article first appeared in The East African.
* L. Muthoni Wanyeki is the executive director of the Kenya Human Rights Commission (KHRC).
* Please send comments to [email protected] or comment online at Pambazuka News.