Social Welfare Rights Theoretical Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Economic, social and cultural rights such as the right to education, Right to housing, Rights to adequate standard of living and the right to health care are recognize and protected by a variety of instruments at international and regional levels. [1] Member states have legal obligations to respect and fulfill economic, social and cultural rights, and will expects to take progressive action towards their fulfillment. The regional instruments, namely the European social charter, the American convention on human and people’s rights gave much emphasis on their protection as well. Economic and social rights are essential parts of the normative international code of human rights. [2] They have their place in the Universal Declaration of Human Rights [3] and in specialized conventions of Human Rights [4] and in the network of Human Rights treaties aimed at the eradication of discrimination and the protection of certain vulnerable groups. [5] These treaties are legally binding in the sense that they create legal obligations to their state parties. In 1950, the general assembly of the United Nations decided that economic social and cultural rights should be included in the single international covenant that was then projected. [6] However, it changed its mind and decided that there should be separate covenants declining with the two categories of rights they should be prepared simultaneously and contains as many similar provisions, as possible. The commission on Human Rights followed these instructions, with the result that the general Assembly was able to approve the International Covenant on Economic, Social and Cultural Rights (ICESCR) on 16 December 1966. Therefore, the UDHR adopted by the UN general assembly in 1948 is one of the most important sources of economic social and cultural rights. It recognizes the right to social security, the right to work, the right to rest and leisure, the right to an adequate standard of living, the right to education and rights to benefits of science and culture. [7] 

The ICESCR is the primary international legal source of economic, social and cultural rights. A number of other major international human rights instruments contain provisions relating to economic, social and cultural rights. The Convention on the rights of child recognizes and protects many of the economic, social and cultural rights recognized in the ICESCR in relation to children. The convention on the Elimination of all forms of racial discrimination prohibits discrimination based on racial or ethnic origin in relation to a number of economic, social and cultural rights. The convention on the Elimination of all forms of discrimination against women of 1979 also affirms a range of economic, social and cultural rights to women. The ILO Conventions protect a range of work related economic, social and cultural rights. The African charter on human and people rights, protect the right to work in Article 15, the right to health in Article 16, and the right to education in Article 17. The European social charter also protects a wide range of economic, social and cultural rights. The Protocol of San Salvador protects a range of economic, social and cultural rights within the Inter-American human rights system.

A range of secondary legal sources exists on economic, social and cultural rights, which provide guidance on their normative definition. An important secondary legal source is the United Nations committee on economic, social and cultural rights, which is overseeing the implementation of the international covenant on economic, social and cultural rights (ICESCR). The Committee has been central in developing the normative definition of key economic, social and cultural rights, interpreting the role of State Parties to the ICESCR, and monitoring protection and violation of the ICESC rights. The Committee issues guiding pronouncements in the form of general comments, and other human rights treaty bodies may also issue comments relevant to economic, social and cultural rights. Other important secondary legal sources on economic, social and cultural rights are the Limburg principles on the implementation of the international covenant on economic, social and cultural rights of 1987 and the Maastricht Guidelines on violations of economic social and cultural rights of 1997.

The Limburg Principles have extensively used in national legal systems as an interpretive tool for establishing violations of economic, social and cultural rights. The Maastricht Guidelines build on the Limburg Principles and identify the legal implications of acts and omissions that are violations of economic, social and cultural rights. Various United nation special raporteurs have influenced the normative development of economic, social and cultural rights. Appointed by the Commission on human rights and its sub-commissions, key raporteurs include the Special Raporteur on the Realization of Economic, Social and Cultural Rights, the Special Raporteur on the Right to Adequate Housing, the Special Raporteur on the Right to Education, and the Special Raporteur on Violence Against Women.

Salient features of Social welfare rights

Economic and social rights are essential part of the normative international code of human rights. the problem relating to the legal nature of social and economic rights does not relate to their applicability many authors are of the opinion that economic and social rights because of their vary nature are not justiciable in their sense that they are not capable of being invoked in courts of law and applied by judges. Moreover, their enforcement requires the pursuit of specific courses of action on the part of the state, and the creation kind of political atmosphere. According to J DE Waal, socio-economic rights are inherently non-justiciable and do not suit to judicial enforcement. [8] 

There was further argument that the protection of such rights should be a task for the legislature and executive and that constitutional sing them would have the inevitable effect of transferring power from these two branches of government to the judicial, which lacks the democratic legitimacy necessary to make decisions concerning avocation of social and economic resources. Others argued how ever, that there was no principled objection to the inclusion of socio-economic rights in a justiciability bill of rights and that the vital issues were the extent and nature of their inclusion. [9] It has historically been argued and traditionally accepted that socio-economic rights are non-justiciable. Advocates of this position have asserted that, while rights to housing, health care, education, and other forms of social welfare may have value as moral statements of a nation’s ideals, they should not viewed as a legal declaration of enforceable rights. Adjudication of such rights requires an assessment of fundamental social values that can only carried out legitimately by the political branches of government, and the proper enforcement of socio-economic rights requires significant government resources that can only adequately assessed and balanced by the legislature. Judges and courts, according to this argument, lack the political legitimacy and institutional competence to decide such matters. Nevertheless, a steadily increasing number of countries have chosen to include socio-economic rights in their constitutions with varying (and sometimes unclear) levels of enforcement. At the core of such social rights are rights to adequate housing, health care, food, water, social security, and education each of these rights enumerated in the 1996 South African Constitution. However, the salient feature of socio-economic rights is that the principal difficulty which socio-economic right lays in their justiciability the extent to which, they can or cannot be enforced by a court. The basic problem that lies at the very root of the implementation of ESCR is their very nature. As need-oriented rights, they require a government with a positive action to fulfill such needs. They are rights through which the beneficiary with a right that require a positive action on the part of the government.

The ideal behind justiciability of bill of rights is that decisions affecting basic rights and liberties should reviewed by an institution standing outside the political sphere, namely the judiciary. Attempts to make social, economic and cultural rights parts of bill of rights are usually met by the argument that particular rights are not suited to judicial enforcement. Because they are positive rights claims by individual and groups to the delivery of goods by government, it has been argued that, their application requires the courts to direct the way in which the government distributes the state’s resources and are, therefore, beyond the proper scope of the judicial function. The above arguments considered in the first certificate judgment in recertification of the constitution of the republic of South Africa 1996 [10] in which the Constitutional Court held that although socio-economic rights are not universally accepted as fundamental rights, they are at least, to some extent, justiciable and at the very minimum can negatively be protected from in vision. [11] However, the constitutional protection of socio-economic rights in South Africa has to be seen in the context of the debate that has often characterized the justiciablity of such rights. The 1996 constitution contains judicially enforceable rights to housing under art. 26, health care, food and water under art. 27, education under art. 29 and children rights under art. 28, as we can see under the case of Grootboom and others vs. the republic of South Africa, the appellants challenged an eviction order that forced squatters off private land without providing alternative shelter. The other aspect of the socio- economic rights debate revolves around the fact that the protection of such rights is dependent on the availability of resources and it is argued that it is meaningless to provide for such rights without the resources capacity to ensure their protection. [12] Therefore, socio-economic rights are further limited by the qualification that they are only to the extent that states resources permit.

In the absence of available states’ resources, the failure of the state to address socio-economic rights is, therefore, not a violation of the rights. State parties to the ICESCR are required to take ‘progressive action’ towards the fulfillment of the ICESR. While immediate fulfillment may not be possible due to the economic situation of a country, postponement of proactive action not permitted. State parties must show genuine efforts to secure the economic, social and cultural rights enshrined in the covenant. The burden of proof for progressive action considered on is with the state party. State parties must abolish laws, policies and practices that affect the equal enjoyment of economic, social and cultural rights and take action to prevent discrimination in public life. All state parties, regardless of the economic situation in the country or resource scarcity, are required to ensure respect for minimum subsistence rights for all. State parties must also ensure that available resources accessed and used equitably.

Therefore, government decisions on how to allocate resources should be subject to scrutiny. Legislative measures alone are not sufficient to ensure compliance with the ICESCR and state parties expected to provide judicial remedies in addition to taking administrative, financial, educational and social measures. However, should resource become available it will be difficult for the state to justify its failure to devote those resource to the fulfillment of the rights as more resources become available more must be done to fulfill the rights.

Social welfare rights under the Ethiopian Constitution

The primary UN Human Rights instrument dealing with socio-economic rights is the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Ethiopia has ratified and incorporated as part of its law. The other instruments that also deal with socio-economic rights are Universal Declaration of Human Rights (UDHR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1979 and the Convention on the Rights of the Child (CRC) of 1989. Ethiopia has incorporated all these instruments as part of its law and has ratified also the African Charter on Human and Peoples’ Rights (ACHPR) of 1981.

Based on these, we can say that the recognition ranges from traditionally civil and political rights to socio-economic and group or solidarity rights. These further reinforced by the national policy principles and objectives of the constitution. The rights generally guaranteed by the constitution for everyone are with some exceptions. [13] Every Ethiopian has the right to freely engaged in economic activities, to choose his/her means of livelihood, occupation and profession, and equal access to publicly funded services. It further requires the state to allocate ever-increasing resources to provide social services, provide funds for the rehabilitation of persons with disabilities, the aged and children without parents or guardian subject to available means and to pursue policies aimed at expanding job opportunities for the poor through undertaking programs and public works projects. It also imposes a duty on the state to protect and preserve historic and cultural legacies, and to contribute to the promotion of arts and sports. The Constitution also guarantees several labor rights including the right to form trade unions for collective bargaining purposes, the right to strike, equal pay for equal work, paid leaves, reasonable limits to working hours and a healthy and safe work environment. [14] The ESC rights under the Ethiopian Constitution have some variation from the UDHR and ICESCR. One major difference from civil and political rights in the Constitution is that ESC rights guaranteed only for the benefit of Ethiopians. [15] 

Moreover, the provisions create government obligations, rather than individual or collective rights, in a manner similar to the state policy principles and objectives. The general and duty-based formulation makes it difficult to determine whether these rights are justiciable. [16] Since the Constitution does not indicate their non-justiciability, it can be argued that these rights are in fact justiciable, at least in the House of Federation. [17] Justiciability will also depend on the level of activism exercised by the members of the Council of Constitutional Inquiry and the House of Federation itself. In any case, the socio-economic rights provisions of the Constitution should be formulated in a way that establishes individual justiciable rights. In this regard, the Constitution should follow the formulation employed in the ICESCR or the UDHR, in a way that creates rights than establish abstract obligations on the government. The Constitution also guarantees several socio-economic rights as part of the National Policy Principles and Objectives. [18] However, it does not expressly declare the non-justiciability of the provisions of the National Policy Principles and Objectives. Hence, the House of Federation or other institutions may either directly apply the principles as binding undertakings, or at least use them to guide the interpretation and understanding of the fundamental rights and freedoms. In addition to incorporating socio-economic rights, the Constitution has incorporated various social, economic and cultural objectives and principles that the State has to observe for formulation of national policies under Chapter Ten. This kind of incorporation of socio-economic needs in the form of directive principles of State policy, though they are not directly enforceable, they may affect the interpretation of other rights by being read into those rights or may be relevant in the interpretation of legislation. Some of the substantive socio-economic areas for which the principles and objectives are provided in the Constitution are health and adequate living standards, education, clean water, housing, food and social security (arts.89 and 90).

In addition, the 1995 Ethiopian Constitution has incorporated a number of principles and objectives that public authorities are obliged to be guided by in the implementation of the Constitution, laws and policies (art. 85(1)). The Constitution stipulates that the Government has the duty to ensure that all Ethiopians get equal opportunity to improve their economic conditions and to promote equitable distribution of wealth among them (art. 89(2)). The Constitution further stipulates that policies shall aim at providing all citizens’ access to health, education, clean water, housing, food and social security (art. 90(1)).Therefore, the government has a duty under Article 13(1) of the constitution to respect and enforce socio economic rights. It can also be argued that the wording of most social, economic and cultural objectives and principles place a duty on the state to promote and fulfill the socio-economic needs of all Ethiopians.

Chapter Four

Adjudicating Bill of rights in Ethiopia

The judicial enforceability of constitutionally protected rights

Art. 13(1) of the FDRE constitution puts strong responsibility and duty on all Federal and State legislative, executive and judicial organs at all levels to respect and enforce fundamental rights and freedoms. By imposing the responsibility of respecting and enforcing the fundamental rights and freedoms (including the guaranteed economic and social rights) on the judiciary, this article of the constitution gives a justiciable dimension to the rights. [19] The duty of the judiciary to enforce the rights is an expression of the subjection of the fundamental rights and freedoms provided by the constitution to judicial application. [20] Art. 37(1) further provides that everyone has the right to bring a justiciable matter to, and to obtain a decision or judgment by a court of law or any other competent body with judicial power and on the other hand, art. 83(1) of the constitution, entitled ‘interpretation of the constitution’, provides that the House of Federation shall decide all constitutional disputes. Of course, these provisions have served as grounds for the insistence of some courts and lawyers of the country against directly applying the constitutional provisions considering cases in which constitutional provisions are invoked as constitutional disputes, and Ethiopian courts generally tend to decide cases based on ordinary legislations even where parties to a dispute invoke constitutional provisions. [21] Nevertheless, legislations take primacy in their application to specific cases; they should be placed in their proper constitutional context and in some cases, it may be imperative to apply constitutional provisions owing to the absence of pertinent ordinary legislations. [22] 

A deeper scrutiny of the relevant laws shows that the mandate of the House of Federation to interpret the constitution does not exclude courts from applying constitutional provisions on fundamental rights and freedoms, a close look at the provisions of art. 84 of the FDRE constitution and Arts. 6, 17 and 21 of the establishment proclamation of the Council of Constitutional Inquiry, clearly show that the constitutional disputes in which the constitutionality of laws is contested and when the interpretation of some constitutional provisions is necessary, and this in turn, can lead to a logical conclusion that the mandate of the house to interpret the constitution doesn’t affect the power of the courts to adjudicate disputes that are based on the provisions of fundamental rights and freedoms including those of economic and social rights. [23] 

Ethiopian courts faced with issues concerning positive obligations of the state relating to legally guaranteed socio-economic rights, they should first interpret the relevant provisions to identify their normative content, and then carefully develop a model of review that may be used to evaluate the steps taken to realize the rights against measurements that may be derived from their provisions. [24] They may take lessons from the jurisprudence of such foreign judicial organs as the South African Constitutional Court which developed its famous ‘reasonableness test’ as a model of reviewing the implementation of social and economic rights. [25] Under this test, the court evaluated the reasonableness of programs meant to realize socio-economic rights in terms of their comprehensiveness, coherence, coordination, transparency, responsiveness to urgent problems and the mode of enforcing positive obligations in the realm of economic and social rights is still developing. The 1996 South African constitution having been certified, the socio-economic rights contained in sec. 26-29 posed challenges for courts to a new constitutional jurisprudence. According to Dannie Brand, courts can protect socio-economic rights in two ways. Firstly, through their law making powers of interpreting legislation and developing the rules of the common law, and secondly, by adjudicating constitutional and other challenges to state measures that intended to advance those rights. [26] Although the significant numbers of cases involving socio-economic rights have come before South African Constitutional Court are - Soobramoney, [27] Grootboom, [28] and TAC, [29] Ethiopian courts may play their part in this jurisprudential development if they entertain and decide such cases. [30] 

Problem’s of social welfare rights adjudication in Ethiopia

In general, legally binding International Human Rights standards should operate directly and immediately within the domestic legal system of each state party, there by enabling individuals to seek enforcement of their rights before national courts and tribunals. Available international procedures are only supplementary to effective national remedies. [31] Questions relating to the domestic application of International Human Rights standard must be considered in line with two principles of international law. The first, as reflected in art. 27 of the Vienna Convention on the Law of Treaties, [32] is that party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. In other words, a state party should amend the domestic legal orders as necessary in order to give effect to their treaty obligations. The second principle reflected in art. 8 of the Universal Declaration of Human Rights, according to which everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by law. [33] However, the primary UN Human Rights instruments dealing with socio-economic rights is the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Ethiopia has ratified and incorporated as part of its law.

The Ethiopian Constitution incorporates a number of socio-economic rights under the provision of Art. 41 without specifically listing and defining. In addition to incorporating socio-economic rights, the constitution has incorporated various social, economic and cultural objectives and principles that the state has to observe for formulation of national policies under chapter ten. This kind of incorporation of socio economic needs in the form of directive principles of state policy. The Ethiopian Constitution has incorporated a number of principles and objectives that public authorities are obliged to guided by in the implementation of the Constitution, laws and policies (art. 85(1)). The Constitution stipulates that the Government have the duty to ensure that all Ethiopians get equal opportunity to improve their economic conditions and to promote equitable distribution of wealth among them (art. 89(2)). The Constitution further stipulates that policies shall aim at providing all citizens’ access to Health’s, education, clean water, housing, food and social security (art. 90(1)). However, the Ethiopian constitution has recognized socio economic rights as justiciable Human Rights. When we say socio-economic rights are justiciable when a court is the capable and legitimate institution for resolving it. However, the constitutional terms in which the socio-economic rights described are more general and in some instances, lacks clarity. Nevertheless, the Constitution has formulated among others, the right to engage freely in economic activity, the right to choose his or her means of livelihood, occupation and profession, right to equal access to publicly funded social services in clear terms. Article 13 (1) of the constitution establishes the duty of all federal and state legislative, executive and judicial organs to respect and enforce fundamental rights and freedoms. The duty of the judiciary to enforce rights is an expression of the justiciablity of the fundamental rights and freedoms provided by the constitution. Article 37(1) further provides that everyone have the right to bring a justiciable matter to court and to obtain a decision or judgment by a court of law or any other competent body with judicial power. While article 13 declares the judicial enforceability of fundamental rights and freedoms, article 37 makes bringing justiciable matter before judicial and quasi-judicial organs and get decision thereon a right by itself. [34] However, the problem is to implement socio-economic rights as they are put in the form of constitutional provisions are too broad and general to directly implement them. It is, thus, necessary for the legislature to promulgate specific legislation, which elaborate and give effect to the general provisions of the Constitution.

Though the premise is not constitutional provisions may, in no way, be directly implemented, the legislature is better equipped and placed to ascertain the needs of the society, respond to those needs and express these in specific legislation. Instead of relying and expecting, the court has to make pronouncements on the meaning of the constitution on individual cases. With regard to other instances, the provisions of the Federal Negarit Gazette Establishment Proclamation No. 3/1995 hinder the judges from invoking International Human Rights standards at the court level. This Proclamation provides in its art. 2 (2) that all Laws of the Federal Government shall published in the Federal Negarit Gazette, while art 2 (3) states that all Federal or Regional legislative, executive and judicial organs as well as any natural or juridical person shall take judicial notice of Laws published in the Federal Negarit Gazette. Some of the interviewed judges have noted that where the provisions of a ratified international instrument not officially translated into the working language, their implementation at the domestic level is close to nil. Translation of International Human Rights standards will make these standards available to the public and thereby facilitate ease of reference for ordinary citizens. The publishing of a ratified International Human Rights instrument in an official document (i.e., Negarit Gazette) further facilitates the access to these instruments to both the judicial organ and ordinary citizens. In addition, According to article 83 and 84 of the constitution, all constitutional disputes shall decided by the House of Federation upon the recommendation of the Council of Constitutional enquiry that it is necessary to interpret the constitution. In other words, when there is a need to interpret the constitution, the power is given for the House of Federation not for the judiciary or there is no Constitutional Court at all which interprets constitutional matters.

According to these provisions that defines the mandate and the procedure of judicial or constitutional review, a procedure by which the constitutionality of laws and decisions is controlled, rather than determine whether constitutional provisions may be applied by courts of law. Article 83 and 84 have served as grounds for the objection of some courts and lawyers in the country against directly applying constitutional provisions, and for considering cases in which constitutional provisions invoked as constitutional disputes. Nonetheless, it does not mean that the mandate of the Council of Constitutional inquiry and the House of the Federation to interpret the constitution excluded the courts from adjudicating constitutional provisions. However, in practice Ethiopian courts generally tend to avoid adjudicating cases based on constitutional provisions even where such socio-economic rights invoked and are relevant. Such kinds of cases referred to the Council of Constitutional inquiry, especially when the constitutionality of a law or decision contested, some times in away that contravene the relevant constitutional and legislative provisions. Because of these reasons, there is no case, which was invoked by plaintiffs against government on the demand of socio-economic rights under the Ethiopian constitution.

Conclusion and a way for ward

It is a fact that the Ethiopian Constitution contains a long list of rights of all categories including socio-economic rights. The major International Human Rights treaties are part of the law of the land. There are many pieces of ordinary legislation protecting various aspects of Human Rights. A coherent reading of these legal instruments shows that the classic Human Rights protected in the Ethiopian legal system. According to the constitution and ordinary legislation, Human Rights are enforceable through judicial and quasi-judicial mechanisms. Hence, the main problem in Ethiopia does not seem to be lack of Human Rights guarantees. However, socio-economic rights not invoked by plaintiffs before the court, at least, as other fundamental rights provisions. Though it is argued that the socio- economic rights considered too general and vague to be considered for immediate implementation, there is no Human Right that could not be considered having, at least, some significant justiciable dimensions. The mode of formulation of the socio-economic rights provisions of the Constitution is, however, problematic. There is, therefore, the need to amend it in the line with the ICESCR. There is also the need to provide for possible remedies in the proclamations that regulate the powers of the Council of Constitutional Inquiry and the House of Federation. Moreover, there is no formal recognition of the judicial enforcement of the Human Rights provisions of the Constitution. Despite various scholarly works suggesting otherwise, the Ethiopian Constitution has kept courts at arm’s length from constitutional interpretation. This has diminished the role of Ethiopian courts as the ultimate custodians of Human Rights protected under the Constitution and other laws.

Ethiopia mainly follows the dualistic approach, as all International Human Rights instruments ratified by Ethiopia need to be published in the Federal Law Gazette as per the requirement of Proclamation No.3/1995. However, only one treaty, among the ones that Ethiopia has ratified, has ever published in the Gazette. For future instruments, that may be ratified by the executive, the House of Peoples’ and Representatives may make two decisions, first, it gives its consent to the ratification of an international treaty, and on the other hand, translates and publishes the provisions of the treaty on the Federal Negarit Gazette and give them the force of domestic law. In this way, immediate and direct enforceability of legally binding International Human Rights standards may be facilitated. With regard to the already ratified but not yet translated and published Human Rights instruments, the State must take the necessary measures to publish in a domestic legislation and publicize them at least in the working language of Ethiopia to facilitate the enforceability of Human Rights in courts of law. In addition, Ethiopia should take a lesson from the experience of the republic of South Africa concerning the adjudication of socio-economic Rights by establishing a Constitutional Court and the responsibility of constitutional Human Rights interpretation should be give for such organs. In addition, all administrative and judicial authorities should also be aware of the obligations that Ethiopia has assumed in its Constitution and the international instruments it has adopted and ratified. The relevant authorities should also be trained and familiarized with the content of these instruments to enable them ensure that the State’s conduct is in conformity with Human Rights standards. They should further be aware that neglect of State’s responsibility to protect, respect and promote Human Rights is inconsistent with the international obligation of Ethiopia and the principle of the rule of law. This will facilitate the legitimization process of Human Rights standards set down by the International Human Rights law and constitutional and legislative provisions in the country. The Ethiopian Government should also give effect to the rights recognized by the Constitution, ratified International Human Rights standards and national legislation. Appropriate means of redress or remedies must be available to any individual whose Human Rights have violated by legislation, act of officials or private actors. Means of ensuring accountability by the government and impartiality and independence of the judiciary should also develop. Otherwise, the unchecked power of the government can be a major threat to the dignity of the individuals.

Finally, the importance of the right to an effective remedy by competent national tribunals for violations of socio-economic rights cannot be over-emphasized. However, judicial remedy should not be taken as the sole remedy for violation of Human Rights. In certain circumstances, administrative remedies, especially for violations of socio-economic rights, might be more appropriate and adequate. However, adequate measures should be taken to make such remedies accessible, affordable, timely and effective. Moreover, Ethiopia should establish a Constitutional Court that interprets fundamental Human Rights in general and socio-economic rights in particular.