Last Updated on March 28, 2024 by Ranking

The article focuses on examining the impact of the ICESCR in Africa, because although African countries constitute the vast majority of states parties to the ICESCR, there is a lack of research on the impact of the Agreement in Africa.

The most important information

• December 16, 2023  almost 60 years have passed since the adoption by the United Nations (UN) General Assembly in 1966 of the International Covenant on Economic, Social and Cultural Rights (ICESCR or the Covenant), the most comprehensive international treaty protecting economic, social and cultural rights ( ESC).
• The article focuses on examining the impact of the ICESCR in Africa, because although African countries constitute the vast majority of states parties to the ICESCR, there is a lack of research on the impact of the Agreement in Africa
• considers whether the rights protected in the ICESCR form part of national (“municipal”, “national” or “domestic”) constitutional law in African countries and, if so, what place do these rights occupy in the hierarchy of the national legal order? The main focus was on the impact of ICESCR on the constitutional protection of ESC rights, as it is the most effective means of protecting human rights in Africa
• Although there is no consistent practice among African states, there is a growing trend towards greater constitutional protection for many ESC rights in Africa, either as human rights subject to justice or at least as “directive principles” of state policy
• ESC rights still do not provide the same level of protection afforded to civil and political rights in the constitutions of many African countries
• The implementation of ESC rights in Africa continues to be hampered by several factors, including failure to comply with national court decisions granting ESC rights, political authoritarianism, high levels of corruption, poverty, armed conflict, limited capacity to engage non-governmental organizations (NGOs) and citizens of society, and lack of respect for the rule of law , including lack of respect for international and regional judicial bodies, manifested by the failure of African states to comply with the recommendations of the African Commission, the failure to comply with the judgments and orders of the African Tribunal, and the failure by African states (including Malawi, Chad, the Democratic Republic of the Congo, Djibouti , Uganda and South Africa) obligations under the Rome Statute of the International Criminal Court.

Entry

The paper focuses on examining the impact of the ICESCR in Africa because, although African states constitute the vast majority of ICESCR state parties, no research exists on the impact of the Compact in Africa.

This may be reflected in citations of the Covenant by courts and tribunals, treaty provisions or national legislation or policies developed under the ICESCR, the development of new norms based on the Covenant such as the right to development, and whether the Covenant has had an impact on the teaching of rights, practices and politician in Africa.

The impact of the Agreement results mainly from the obligations of the States Parties under Art. 2 section 1 ICESCR to “take steps” within the maximum resources available to progressively achieve the full realization of ESC rights.

The article considered the impact of ICESCR in Africa, focusing mainly on the legal dimension of the impact of the Agreement (“legal effects”, i.e. the impact of the Agreement on the market for legal protection of human rights), rather than on the “actual” , statistically or empirically verifiable changes introduced by the Pact.

To place the Covenant in the regional context of human rights in Africa, the article begins with the discussion in Sect.

considers whether the rights protected in the ICESCR form part of national (“municipal”, “national” or “domestic”) constitutional law in African countries and, if so, what place do these rights occupy in the hierarchy of the national legal order?

The main focus was on the impact of ICESCR on the constitutional protection of ESC rights, as it is the most effective means of protecting human rights in Africa.

The impact of ICESCR on the African regional human rights system

It is important to note that the ICESCR influenced the drafting, legal protection and development of ESC rights contained in the African Charter on Human and Peoples’ Rights (African Charter), the main human rights treaty of the African Union, adopted on 27 June 1981, 15 years after the adoption of the ICESCR.

It is important to emphasize that the African Commission has the power to “draw inspiration from international law on human and peoples’ rights”16, from UN instruments such as the ICESCR, in interpreting the Charter

This provided the legal basis for reliance on the ICESCR in developing African Commission jurisprudence on ESC rights.

The African Court on Human and Peoples’ Rights confirmed in African Commission on Human and Peoples’ Rights v. Republic of Kenya that pursuant to Art. Articles 60 and 61 of the African Charter will draw inspiration from “other human rights instruments”, including the ICESCR and the CESCR General Comments, when interpreting the rights protected by the Charter.

In this case, the Court found, inter alia, that the Republic of Kenya had interfered with the enjoyment of the Ogika people’s cultural rights by evicting them from the Mau Forest in Kenya, thereby restricting their cultural activities and practices, in violation of Article 17. 2 and 3 of the African Charter.

In reaching this conclusion, the Court relied on General Comment CESCR 21, paragraphs 36–37, to interpret the right to participate in cultural life under Art. 17 of the African Charter, noting that: The Committee on Economic, Social and Cultural Rights of the United Nations, in its General Comment on Art. 15 section 1 letter a) noted that “a strong community dimension of the cultural life of indigenous peoples is essential to their existence, well-being and full development and includes rights to lands, territories and resources that they have traditionally owned, occupied or otherwise used or acquired.”

Without such a declaration, the Court clearly has no jurisdiction to receive cases from individuals and non-governmental organizations alleging violations of ESC rights against several States.

This limits the Court’s ability to advance protection of ESC rights under relevant human rights treaties, including the ICESCR.

It is important to note that the African Commission has strongly recommended that African countries “harmonize” their national legislation with “international human rights obligations.” Have African States Parties to the ICESCR harmonized their national regulations with the ICESCR? This section examines the impact of the ICESCR on national legal systems in Africa, with particular emphasis on whether the Covenant has had an impact on the constitutional protection of human rights.

The impact of ICESCR on the internal protection of human rights in Africa

Many African countries are notoriously late in submitting their reports to CESCR. It is important to note that the Committee has made several important recommendations regarding the implementation of ESC rights at national level in several African countries.

From these observations, it appears that a common problem in Africa is the domestic use of ICESCR.

This section begins by examining whether rights protected in the ICESCR are part of national constitutions in Africa and then assesses national approaches to the application of the ICESCR in Africa in countries with dualistic and monistic approaches to international treaties in Africa.

Are the rights protected in the ICESCR part of national constitutions in Africa?

States parties to the ICESCR have committed to “take steps” within the maximum “resources available” to “progressively achieve” the full realization of the rights recognized in the Covenant.

Some African countries adopted constitutional provisions after 1990, usually after they became States Parties to the ICESCR, in line with the priority given to the provisions of international human rights treaties, including the ICESCR, over any inconsistent national provisions.

Other States have transformed certain rights protected by the Covenant into domestic law, supplementing or amending existing national constitutions and ordinary legislation, without reference to the specific terms of the Covenant.

Due to weak parliamentary institutions in most of Africa and an over-reliance on the executive, there is a lack of legal provisions in international human rights treaties, including the ICESCR.

Although the Committee has made several important recommendations regarding the implementation of ESC rights in several African countries, the impact of these recommendations in Africa remains overall limited as most of them have not been implemented or are excessively delayed.

This is partly due to a lack of political will to follow the recommendations of international judicial bodies.

In 2009, the Court ruled that the right to education was recognized as an extra-jurisdictional “directive principle” of state policy within the meaning of Art. 6 section 6 letter (c) of the 1999 Constitution of Nigeria, the ECOWAS Community obligations undertaken by Nigeria as a result of being a State Party to the African Charter result in the Court being obliged to apply all rights protected by the African Charter, including its articles 17, which guarantees the right to education.

ICESCR has influenced the legal protection of ESC rights in some African countries in several ways.

They were used as a source of interpretation in some court decisions.

They are referred to as a source of law in some national constitutions, which in turn has influenced the adoption of some of the ordinary laws and policies necessary to ensure ESC rights.

All African countries have constitutions containing provisions governing the relationship between international treaties and domestic law and/or protecting human rights, including the right to life, human dignity, equality and non-discrimination, freedom from torture, inhuman and degrading treatment, and certain ESC rights.

There is no uniform, identical approach to treaties in Africa, generally African states follow a “dual” or “monist” approach to international treaties, in line with the practice of domestication of international treaties used by former colonial powers in Africa, mainly Britain, France and Portugal, although many constitutions contain both “dual” and “monistic” elements.

The dual approach to ICESCR in Africa and the impact on human rights

The impact of ICESCR on African countries taking a ‘dual’ approach to international treaties depends on whether the country has adopted appropriate domestic law to implement its obligations under the Covenant.

In such States applying a ‘dual’ approach to the ICESCR, the Agreement is applied by national courts through mediation under national legislation and national legislation will prevail unless the issue can be resolved by interpretation.

This means that in “dual” African states, rights protected under the ICESCR and the case law developed by the CESCR are generally considered to be not directly enforceable unless incorporated into domestic law through legislation.

By December 2016, most African countries with a ‘dual’ approach to international treaties had adopted some policy and legislative measures to protect some aspects of ESC rights, they had not put in place national legislation to explicitly and fully incorporate or give full effect to the ICESCR in national legislation in order to ensuring the application of all rights under the Covenant in national courts.

Historically, some domestic courts in “dualistic” African states have referred to international treaties protecting civil and political rights, such as the ICCPR rather than the ICESCR, when applying and interpreting relevant domestic law.

These include issues related to reproductive and sexual rights; protecting pregnant students and women studying at universities from discrimination in education; protecting persons from sterilization due to human immunodeficiency virus (HIV) positive status without informed consent; and the right to maternal, child and reproductive health by providing compensation for the failure to provide pregnant women with “timely, immediate and emergency obstetric care”.

Despite these developments, most national courts in Africa do not always take the ICESCR into account when interpreting and applying national law.

The Tribunal relied directly on Art. 12 ICESCR and General Comment 14 and General Comment 17 when interpreting the scope of the right to health in Kenya.

A monistic approach to ICESCR in Africa and the impact on human rights

Monism emphasizes that domestic and international law constitute a single legal order, or at least a series of interrelated orders that must be presumed to be consistent and consistent.

In countries applying monism to international agreements, a treaty such as the ICESCR may become part of national law without legislation and may be applied directly in the national legal order once it has been concluded in accordance with the constitution and has entered into force of the country.

Some constitutions of some “Francophone” and “Lusophone” African states expressly provide that treaties duly signed and ratified in accordance with constitutional processes form part of national legislation or take precedence over domestic legislation, or that human rights protected in the Constitution are to be interpreted in accordance with the relevant international instruments .

The “Lusophone” States of Africa expressly provide that treaties duly signed and ratified, in accordance with constitutional procedures, form part of or take precedence over national legislation, or that human rights protected in the Constitution are to be interpreted in accordance with the relevant international instruments.

It must be acknowledged that, overall, most courts in “monist” African states have failed to give full effect to the provisions of the ICESCR in the domestic legal order, especially by providing judicial and other remedies for violations of ESC rights.

The influence of ICESCR on national legislation, policy and jurisprudence of national courts in most “monist” African states is very limited, partly because historically, judicial training has paid insufficient attention to international human rights, including the validity of ESC rights.

NGOs should pursue cases involving systematic violations of ESC rights in the public interest to protect underprivileged and marginalized populations of society.

This will assist national courts in applying the ICESCR when interpreting domestic law to develop the content of ESC rights and determine the nature of the obligations of both states and non-state actors.

ICESCR has had a significant impact on regional and, to some extent, national legal protection of ESC rights in Africa.

The agreement resulted in the explicit protection of ESC rights in the African Charter and several African constitutions.

Although there is no consistent practice among African states, there is a growing trend towards greater constitutional protection of many ESC rights in Africa as human rights subordinated to justice, or at least as “directive principles” of state policy.

ESC rights have still not achieved the same level of protection afforded to civil and political rights in the constitutions of many African countries.

To increase the impact of ICESCR in Africa, these factors need to be addressed through the implementation of a broader range of comprehensive, necessary, appropriate and effective legal, economic and educational measures, action plans and policies of countries, including: (i) enacting and implementing national legislation to ensure the effectiveness of ICESCR; (ii) providing extensive training and awareness-raising campaigns on ICESCR and the importance of ESC rights among politicians, legislators, national and local officials, law enforcement officials, and students at all levels of education; (iii) training of members of all professions and sectors who play a direct role in promoting and protecting human rights, including judges, lawyers, prosecutors, civil servants, teachers, immigration officials, military, police and other law enforcement officials in the field of national application international human rights treaties, including specific training programs on ICESCR; (iv) adopting and effectively implementing poverty reduction strategies, in cooperation with relevant organizations and institutions that should take full account of ESC rights; (v) ensuring accountability and transparency in the management of public funds and the conduct of public authorities and the allocation of available resources to appropriate sectors, especially those focusing on the most disadvantaged and marginalized social groups and individuals, in law and practice; (vi) immediate signature and ratification of the Optional Protocol to the ICESCR, which provides a complementary and accessible forum for accountability for neglected ESC rights; (vii) increased use of strategic litigation as a means of gaining political recognition to support the empowerment of the marginalized individuals and groups such as indigenous peoples; and (viii) the timely submission of periodic reports to the Committee on Economic, Social and Cultural Rights, including summaries of cases and decisions adopted by national courts and tribunals on the validity of ESC law.

Source: Manisuli Ssenyonjo