Achieving economic, social and cultural rights

Processes of social change are simultaneously rights-based and economically grounded since at the level of the human experience, the two dimensions are inseparable. Haki Zetu is based on the principle that to achieve lasting change, it is essential for communities and NGOs to use the human rights framework to persuade their governments to live up to their commitments to fulfill economic, social and cultural rights (ESCR). The fulfillment of ESCR for most people in Africa is a distant dream because of a deep-rooted free market narrative that sees poverty as an externality of economic activity, as if the international economic system has no historical development and grounding. The human rights framework that stipulates an internationally agreed set of norms, backed by international law, provides a basis to hold accountable states and international actors for the fulfillment of ESCR.

Although the concept of economic, social and cultural rights has been expressed in many ways and in many places as indispensable for an individual’s dignity and the free development of the person, the status of ESCR continues to be questioned due to a ‘conceptual’ unwillingness to obligate state power to respond concretely and affirmatively to claims addressed to particular kinds of needs, because of views about the appropriate boundaries of state-individual-society relations, or because of a lack of consensus as to whether certain ends should be entitlements in the sense of legal rights.

The state by definition and purpose is a ‘duty-bearer’ towards the ‘rights-holders’, the right to dignity. States are under a legal obligation to utilise available resources, maximally, to address the social and economic needs of the population, and redress imbalances and inequalities where they exist. The fulfillment of ESC rights implies a commitment to socio-economic integration, solidarity and equality, and tackling poverty in all its forms.

The ICESCR to which most states have signed to outlines the duties of the state to promote the realisation or enjoyment of those rights by fostering the conditions necessary for their enjoyment. The ICESC does not contain explicit provisions setting forth the duty to ensure that domestic and international law provide sufficient means of maintenance of the treaty standards. It is left to individual member states to decide how they should implement the covenant at a national level. However, state machineries are embedded in the world system and despite the specific institutional forms that states may take, individual state capacities cannot be understood apart from the whole and its history. Most African states were integrated into the global state and economic system as peripheries and as marginal, without an effective state power at their disposal, and are still mostly locked into a dependent economic relation with the rich countries of the northern hemisphere. To this dependency add the IMF (International Monetary Fund) structural reform policy, Cold War rivalries and experimental developmentalism and one ends up with states unable to fulfill even the most basic ESCR. Moreover, the promotion of ESCR leads to an intensified examination of national social issues, through the judiciary and international treaties, and tends to disturb national power balances and internationally vested interests.

The series of handbooks Haki Zetu approaches human rights from the prism of the people fighting for their dignity rather than the perspective of a state reflecting on the limits of its capacity to protect them and the institutions it might develop to do so. The handbook series aims stem from the fact that in many communities in Africa and elsewhere, community members may have a clear understanding of the obstacle they face in realising a dignified life, but may not have yet realised that they have rights they can claim against the state and require that political priorities and the behaviour of public institutions conform to ESC rights standards. This may be the case in many communities despite the fact that ‘people have, and always have had a notion of justice and most would know or at least have an idea when state authorities are acting improperly’.

The Haki Zetu main handbook starts by sketching the evolution of the concept of human rights with a good example of a fairly old African ‘charter’ of human rights developed since the 13th century, the Kurukan Fuga of the Mandiga people in West Africa, through the declaration of the UN Universal Rights to the African Charter of Human and People’s Rights and the different treaty bodies and special procedures on ESC rights. The second section of the handbook is a practical guide for ESCR advocates working in communities.[1]

The series is based on the principle that to achieve lasting change, it is essential for communities and NGOs to use the human rights framework to persuade their governments to live up to their commitments.

The human rights framework used in the handbooks is made up of three main obligations: to respect, protect and fulfill rights.

The obligation to respect requires the state and all its organs and agents to abstain from doing anything that violates the integrity of the individual or infringes on her or his freedom, including the freedom to use the material resources available to that individual in the way she or he finds to satisfy basic needs.

The obligation to protect requires from the state and its agents the measures necessary to prevent other individuals or groups from violating the integrity, freedom of action or other human rights of the individual including the prevention of infringements of his or her material resources.

The obligation to fulfill requires the state to take the measures necessary to ensure for each person within its jurisdiction opportunities to obtain satisfaction of those needs, recognised in the human rights instruments, which cannot be secured by personal efforts.

The tripartite framework used has a normative character which encompasses a spectrum of legal obligations going from the ‘negative’ to the ‘positive’.

Whilst each human right plays a role in structuring expectation regarding the deployment of state power to the end of securing the minimum conditions of human material existence, the two notions, respect and protect, firmly belong to civil and political rights. The notions are being used on the international level to develop a complaint procedure for ESCR, because of the unending debate on the justifiability of ESCR, which centres around the cost of fulfilling them and the implication of lifting so many out of poverty. There is and there should not be a debate on the justifiability of ESCR. ESCR have been signed into agreement by most states and are thus enforceable in the courts of law.

After more than half a century since the signing of the Declaration of the Universal Human Rights Charter, for the sake of the integrity of human rights the debate should be on how to create an enabling, solution-based environment to the fulfillment of ESCR.

The tripartite framework used in the handbook loses some of its applicability when one has to decide what it takes in a concrete situation for a state party to comply with its human rights obligations. ‘The obligation to create an institutional machinery essential to the realisation of rights, to provide goods and services to satisfy rights and to promote rights is as fundamental to the obligation to respect as they are to the obligation to fulfill’.[2] It is more imperative to look at what it actually takes to enable people to secure their rights and the duties required to implement ESCR.

The second part of the main book is a practice-based guide to claiming, defending and promoting human rights in the community. The guide weaves together two models of HR work, an accountability model which focuses on trying to guarantee human rights either through the monitoring of human rights violations or advocating the protection of human rights through the law and strengthening content, and a transformational model that focuses on empowerment through recognition and prevention of human rights abuses.

After several decades of progressive human rights implementation, human rights work is guided by a reasonably well-defined set of core values, a complex and diverse body of knowledge and an elaborate system of mechanisms, set procedures and language used in the field and other spheres. In addition, human rights bodies legitimise their human rights fieldwork on the basis of general organisational functions, explicit and implied powers, and location-specific mandates. For some observers, the professionalisation of human rights work disables the possibility of other ways of knowing, and being, as though the knowledge of the problems of want and oppression, and their solutions, lie not with those who live these experiences, but with those human rights professionals who research them and fight on their ‘behalf’.

Haki Zetu seeks to foster the integration of human rights within the civic community through CBO. It is designed to support the delivery of human rights work at the most local level. Human rights work in the field is by its very nature particularly volatile and charged. Continuous support of CBO in the community is critical, along with formal study of human rights content, intensive skill training in leadership development and conflict resolution, whilst being mindful of socio-political processes of recognition and social hierarchies, and the possibility of a configuration of the human rights worker as the distributor of rights for those unable to claim them.

The handbook could be a useful tool for the promotion of ESCR at the most local level. The African Union is still in the process of drafting the protocol on ESCR. Whilst the protocol is long overdue, it is necessary for international organisations to engage with the debate at the African Union level, before they send foot soldiers to agitate the poor folk living in huts. The African charter is a charter for human and people’s rights; the concept of a people is enshrined in the charter. Any human rights work should be mindful of the human rights politico-cultural framework that has a conception of the human being as an abstract isolated individual, and restrain from advocating the supremacy of the individual over the community, especially when the individual is conceived in the classical liberal tradition as an individual, a human being who will use any means necessary in the pursuit of material benefits and can have no good reason to expect decent treatment from his fellows.

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* Gillian Nevins, ‘Haki Zetu: Economic, Social and Cultural Rights in Practice’, Amnesty International Netherlands, 2010, ISBN: 9789064632600.
* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News.

NOTES

[1] Haki Zetu, ESCR in Practice, Amnesty International Netherlands, 2010
[2] Ida E. Koch, Dichotomies, Trichotomies or Waves of Duties? Human Rights Law Review 5:1

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