Reclaiming humanity: economic, social, and cultural rights as the cornerstone of African human rights.

• Author: Agbakwa, Shedrack C.

A point very often missed in human rights praxis is that economic, social, and cultural rights (ESCR) "are the only means of self-defense for millions of impoverished and marginalized individuals and groups all over the world."(1) Despite the international rhetoric on the equal relevance, interdependence, and indivisibility of all human rights,(2) in practice states have paid less attention to the enforcement and implementation of ESCR, and their attendant impact on the quality of life and human dignity of the citizenry, than other rights.(3) African states, still living with the nightmares of slavery and colonial exploitation, are perhaps unsurpassed in this dreamy, rhetorical exercise.

African states ought to take the lead in the enforcement of ESCR, given Africa's deplorable socio-economic conditions. They ought not to emulate the industrialized states of the North which can afford the luxury of hollow rhetoric in the implementation of ESCR. Regrettably, African states have so far failed to match their words with appropriate, sufficient action.(4) Where African leaders have asserted the importance of satisfying ESCR as part of protecting other rights, some have done so with the intention of using this rhetoric as a ploy to suppress civil and political rights.(5)

Africa's worsening socio-economic conditions, and resulting exacerbation of civil and political strife coupled with the current lack of interest in the enforcement of ESCR,(6) renders the effective realization of human rights on the continent a remote possibility. Even if largely unintended, the neglect of ESCR, a substantial part of an indivisible whole, as brought about this sad state of affairs. This Article contends that there is an urgent need for a change of attitude and a relocation of emphasis from neglect and discriminatory enforcement of human rights to respect and balanced, holistic enforcement. Given the prevailing socio-economic circumstances in Africa, ESCR remain the cardinal means of self-defense available to the majority of Africans.

Part I of this Article emphasizes the imperative of a holistic and non-discriminatory enforcement of all human rights in Africa and links the failure of African governments to safeguard the socio-economic rights of their citizens to the widespread incidence of civil and political strife. Part I contends that, in contemporary Africa, a government's legitimacy is largely a function of its ability to guarantee and protect the ESCR of its people.

In contrast to many scholars and commentators who have pointed to the under-development and acute economic crises of African states as the reasons behind the non-enforcement of ESCR,(7) Part II contends that underdevelopment and economic crises are hardly the whole story. It argues that recognition and enforcement of these rights catalyze development and are inextricable from it. Any quest for meaningful development ought to be predicated on the effective protection, enforcement, and realization of ESCR. While mindful of the poor economic conditions of many African states, Part II argues that these conditions do not justify outright non-enforcement of ESCR.

Part III discusses some factors militating against the realization of ESCR in Africa. Part IV highlights the consequences of the continued marginalization of these rights. In strategizing the way forward, Part V articulates alternative enforcement approaches that will ensure a non-discriminatory and more effective enforcement of ESCR. In Part VI, I shall offer a few concluding remarks.

The aim of this Article is not to analyze the various rights traditionally classified as ESCR. Rather, it seeks to question the marginalized enforcement of ESCR as codified in the African Charter (work, health, education, and cultural rights), including the "new rights,"(8) such as access to the public services of one's country, public property, and other services.(9) The Charter does not expressly provide for housing or social security rights. But, except as otherwise indicated, this Article does not exclude these or other socio-economic rights from its purview. This Article focuses on the collective marginalization of ESCR, broadly construed. It focuses on particular ESCR merely to illustrate points.

1. THE IMPERATIVE OF A HOLISTIC APPROACH TO ENFORCEMENT

   "Perils to the part imperil the whole."(10)

   In the 1993 Vienna Declaration,(11) the consensus opinion recognized the futility inherent in entrenching civil and political rights without the corresponding ESCR. This consensus emerged despite the bipolar (East-West) ideological differences, which then dominated international relations, and led to the implementation of the Universal Declaration of Human Rights (UDHR) by means of two international covenants, and continue to have grave implications for ESCR.(12) Long before the Vienna Declaration, the UDHR set the parameters for evaluating the legitimacy of governmental actions by codifying "the hopes of the oppressed, [and] supplying authoritative language to the semantics of their claims."(13) The euphoric "Never Again" declaration by the victorious powers after World War II was intended to encapsulate humanity's resolve to banish human misery in all its ramifications, whether arising from physical abuse or from want.

   If the purpose of government is to provide for the welfare and security of all citizens, governments fail to fulfill this purpose when they commit to enforcing only civil and political rights. Such an ostrich-like posture denies the various forms of state abuse against which the citizen must be protected: above all, the state's neglect of its citizens.(14) Even opponents of enforceable ESCR recognize this axiom. The de facto commitments of many Western states to a welfare ethos(15), despite their official opposition to ESCR, assures a high degree of compliance in protecting the rights of their citizens.(16)

   Modern governments are active participants, not passive spectators, in events that fundamentally impact the ability of the people to lead a meaningful and dignified life.(17) Governance ceases to be meaningful when the majority of the people is put in a situation where it cannot appreciate the value of life, let alone enjoy its benefits, and where it lacks the appropriate mechanisms to compel change. Where human survival needs frequently go unmet, as in Africa, protection of human rights ought to focus on "preventing governments from neglecting their citizens."(18)

   A point that is often overlooked in contemporary human rights discourse and practice is that the greatest benefit of guaranteeing enforceable rights is the assurance it gives to people that effective mechanisms for adjudicating violations or threatened violations of their rights are available. As events in many parts of Africa have shown,(19) the absence of such mechanisms gives the impression that resort to extra-legal means, such as armed rebellion, is the only way to improve one's condition or challenge governmental abuse and neglect.(20) Most current African conflicts consist of people who are fighting not against themselves but against poverty and governmental inaction in the face of destitution. This conflict usually is due to many years of impoverishing neglect and to the absence of other viable ways of compelling meaningful change. Because governments are increasingly expected to meet the basic needs of their citizens, there is a growing tendency to demand results in militant terms, particularly in the absence of a proper forum to compel governmental action.(21) As Callisto Madavo, World Bank Vice President for the African region, observes, "Africa's wars are not driven ... by ethnic differences. As elsewhere, they reflect poverty, lack of jobs and education, rich natural resources that tempt and sustain rebels, and [ineffective and insensitive] political systems...."(22)

   These are, for the most part, socio-economic and political conflicts among ethnically differentiated peoples. Although holistic protection of all rights will not prevent every conflict, it will defuse the majority of conflicts that are triggered or sustained by those who exploit abject socio-economic conditions.(23) Scholars have demonstrated a causal link between these conflicts, which can be seen as a people's violent resistance to their deplorable socio-economic conditions,(24) and the absence of perceived modes of effecting a peaceful change. On the psychological level, it has been observed that:

   [T]he gap between what a people expect as being just and fair and

   what they actually have can heighten a sense of unfair treatment

   and so develop a sense of deprivation.... Feelings of

   deprivation ... provide fertile grounds for mobilizing opposition

   and the affected group with the real potential for collective

   violence and social instability. Economic, social and political

   institutions that are perceived to have failed to address the

   conditions producing deprivation become victims of vicious

   campaigns that can lead to [violence].... [T]he fear of

   unemployment and the strain of reduced economic security in

   people's private lives can create tremendous anxiety and agitation.

   Psychologically, reactions to unemployment, especially when it is

   rising, and its attendant strain of reduced economic security may

   create fear, frustration and aggression.... Conceivably, the fear of

   social instability may increase the potential for violence.(25)

   This relationship between deprivation and conflict underscores the fundamental link between protection of human rights and stability. The intimate relation between stability and human rights, in turn, reinforces the necessity of guaranteeing the enforcement of all human rights without exception.(26) Since the different rights are interconnected and operate in support of each other, it logically follows that the full realization of one set remains dependent on the realization of the other.(27) In a state of instability resulting from the...