Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa a

J. Oloka-Onyango b

originally printed in the
© California Western International Law Journal
(disseminated here with the authority of the Journal and the author)

Volume 26 Fall 1995 Number 1

[footnotes and tables removed to ease electronic publishing]
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The arena of human rights discourse and practice has been dominated by attention to the more commonly known civil and political rights-rights to free expression, political and civic association, and freedom from torture, cruel, inhuman and degrading treatment. By contrast, economic, social and cultural rights are much less well known, and only rarely do they form the subject of concerted political action, media campaigns or critical reportage. This is the case in the countries of both the "North" and "South." This dearth of action is a more acute problem in the latter because of the widespread lack of basic human needs such as clean and potable water, sufficient food, adequate shelter and comprehensive health care. In sum, economic, social and cultural human rights are the poor relation of their civil and political counterparts. Yet, both in the Universal Declaration of Human Rights and in subsequent international documents, the two categories ofrights are placed on an equal footing, with an emphasis on their indivisibility, interconnection and interrelationship. As we approach the next millennium, with social and economic conditions of existence exacerbating civil and political strife, it is time to devote more attention to those human rights which have been neglected and to devise appropriate methods to boost their recognition and enforcement. A first step in this direction is simply to examine the existing situation with respect to the observation of economic, social and cultural rights in individual countries and regions of the world. This essay offers a preliminary analysis of economic and social human rights in specific relation to the African continent.

A. The African Status Quo

Zairean president Mobutu Sese Sekou wa Zabanga is the dinosaur of African politics, having effectively reigned over his country even before the 1961 assassination of Patrice Lumumba. Following in the footsteps of thelate Ferdinand Marcos of the Philippines, he is believed to have amassed a fortune far in excess of his country's national debt, bankrupting what must be one of the richest nations on the continent. Despite long-standing demands for his departure, Mobutu refuses to budge, contemptuously dismissing his opponents as power-hungry opportunists. Mobutu's continued domination of the Zairean political scene has effectively denied his people their civil and political human rights to free expression, association and participation. At the same time, his corruption and vice directly impinge upon the people of Zaire's economic and social human rights to adequate health care, sufficient food and appropriate shelter. Both categories of rights are guaranteed in the international human rights instruments. Yet for much of his career, Mobutu has posed as a spokesperson for economic and social development and harped upon the need to redress international imbalances in trade and in relations between North and South.

Mobutu's Janus-like posturing stands at an extreme, but in both hypocrisy and duplicity he by no means stands alone. Indeed, an examination of the history of economic and social rights in Africa elicits several reasons to review and question the positions adopted by its international leaders withrespect to the instruments and mechanisms established in international fora. Such a review must necessarily sever their words from their deeds.

There are several reasons for such an approach. First, despite the eventual focus on the individual as the subject of development, as well as of economic and social rights, considerable contention accompanied the process of arriving at such a position. Much of the initial debate about development focused on the place of the state. Some condemned and demanded atonement for the very real debilitations imposed by imperialism, others contended that attention to the civil and political rights of individuals must be sacrificed in the interests of achieving the social and economic advancement of the State. The latter demand referred to by Rhoda Howard as the "full-belly thesis" was translated as the state's right to receive more international aid, for a time considered the panacea to all Africa's developmental problems.

Further removing individuals from the focus, was the Cold War stalemate which caused both western and eastern mentors to turn a blind eye to the human rights violations of their client states in the pursuit of strategic military and economic interests. Needless to say, both categories of human rights economic, social and cultural and civil and political suffered as a consequence.

Contemporary African scholarship too, tended to be constricted by the respective ideological blinkers of east and west, and in some ways followed the rhetorical position of the leadership. Thus, African scholars made the claim that the protection of civil and political rights should await the implementation of economic and social rights, in one and the same breath as the assertion that African states were too poor to realize the latter. Paradoxically, however, while the literature on civil and political rights in Africa between the 1960s and the 1980s is fairly extensive and intellectually probing, that which examines economic and social rights is rather scanty. By contrast, the amount of literature on the topic emanating from other regions of the world is fair, albeit not substantial. Finally, although the growth of indigenous African human rights groups whose main focus iscivil and political rights has been phenomenal over the past several years, the relative dearth of those covering economic and social rights in an activist fashion is, to say the least, disturbing. Despite all the talk over the last thirty years about sacrificing votes for food, economic and social rights remain the poor relation of civil and political rights in Africa, a situation long in need of remedy.

The end of the cold war compels us to consider how to further the connection between development and human rights in general, and between development and economic and social rights in particular. For Africa, it is especially critical to reconsider the issue in a holistic manner, because current democracy struggles are strongly underpinned by what Julius Nyang'oro refers to as a demand for "the betterment of economic life." This factor is all too often overlooked in the euphoria of political transition.

B. The Elements of a Holistic Approach

Clearly the situation now demands a more nuanced and critical reconsideration of both national policy and international practice that simultaneously transcends the rhetorical smokescreen erected by African leaders, and directlychallenges the traditional ambivalence of the international community. Such an approach also means a confrontation with some of the traditional arguments against the enforceability and justiciability of this category of rights, particularly in light of the globalization of the capitalist system. Attending the process of globalization is the increasing omnipotence of international financial and development institutions (IFDIs). Coupled with this is the development of regional initiatives, covering, inter alia, the humanrights arena, the area of migration and refugees, as well as a renewed focus on conflict resolution and peace building. All these factors necessitate the consideration of economic and social rights as a critical component of the agenda for the next millennium. Most importantly, the implicationsfor the most marginalized and oppressed members of society, women, children and minorities must be carefully examined, and integrated into projected solutions. As the "second winds of change" gust across the continent from the Cape to the Horn, it is appropriate to initiate a serious inquiry that remedies the lip-service attention given to economic and social rights: How do we get beyond the rhetoric?

Presented in this essay is a preliminary framework in which some debate on the preceding issues can be joined. Part I of this Article surveys the international arena and considers the African response to the institutional mechanisms established to promote the realization of both economic and social, and civil and political rights. Within this same frame of analysis, it examines the operation of a variety of significant economic and political actors, such as the World Bank and the International Monetary Fund (IMF), the specialized agencies of the United Nations (UN), and international NGOs.

Part II of the Article examines the African context. It commences with an historical overview of the general human rights situation in Africa with an emphasis on the role of the Organization of African Unity (OAU). It thenexamines the African Charter on Human and People's Rights (Banjul Charter) and the Lagos Plan of Action for development and economic growth. Part III broadly considers the domestic context in which economic and social rights are intended to find ultimate meaning and expression. It then offers some tentative suggestions for concrete action to revitalize economic and social human rights activism in Africa.

I. African States and the International Human Rights Scene

A. The International Covenants and the Mechanisms of Enforcement

Since the elevation of human rights to the arena of international concern in the period following the second world war, a major objective of the United Nations has been the design of mechanisms to ensure that the ideals of the Universal Declaration of Human Rights could be enforced. The first steps toward this objective were taken with the promulgation of two Covenants; the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Interestingly, these instruments came into existence nearly twenty years after the Universal Declaration was adopted, and did not enter into force until 10 years later, in 1976. That history has been treated in greater detail elsewhere. Suffice it to mention that while the Covenants have had a noticeable impact on the evolution of international human rights law, a number of loopholes still remain in their implementation.

The implementation of the Covenants is overseen by special Committees, comprising experts selected on the basis of personal merit. The two instruments establish a variety of supervisory mechanisms including inter-state complaints, and individual or group petitions. Finally, there is the mechanism of reporting by states parties to the Covenants. Complaints and petitions have been of varying utility in terms of enhancing respect for the observation and realization of human rights. State reporting has been of particular importance in the evolution, development and acceptability of the supervisory mechanisms established in the Covenants. Indeed, as Philip Alston notes, reporting is the only implementation mechanism that is specifically provided for in the ICESCR, although it is also "only one part of a continuing process, the domestic rather than the international ramifications of which should be far more significant."

Under the ICCPR, states parties are required to submit reports "on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights." The obligation accrues within one year of the entry into force of the Covenant for the particular State Party concerned, and thereafter, whenever the Human Rights Committee (HRC) established under Article 28 so requests. The HRC studies and comments on the reports at bi-annual sessions. Its comments are notedon the reports, which are then submitted to the states parties and the Economic and Social Council of the United Nations. The HRC sessions permit NGO representation, although NGOs do not participate in the deliberations of the meeting. Reporting serves several functions, including: monitoring performance and commitment, assisting in policy formulation, exposing states to public scrutiny, evaluating and acknowledging problems and exchanging information.

Reporting under the ICESCR has evolved in a slightly different fashion from that originally envisaged by the Covenant, in part because of the nature of the rights involved, and also because of the inadequacies of the first system. The original system, introduced in 1976, shortly after the ICESCR came into force, involved a three-phase reporting cycle. Each phase lasted three years, during which reporting centered on a specified cluster of rights. The first phase covered Articles 6 to 9; the second, Articles 10 to 12; and the third, Articles 13 to 15. This system meant that a reporting cycle took nine years to complete. For subsequent periodic reports, the cycle was reduced to 6 years, but thereafter a state party was required to submit a report every two years a program that came to be considered unduly burdensome and reflective of "an excessively compartmentalized approach to the rights recognized in the Covenant."

New guidelines for state-party reporting were consequently adopted by the ICESCR Committee in 1988. These two-part guidelines do not distinguish between initial and periodic reports, and they cover all provisions in the Covenant. The first part covers the overall country profile, and general socioeconomic and political conditions, while the second part specifically elicits information on the rights in the Covenant.

The process of reporting allows states parties, as well as the Committees established under the respective Covenants, to engage in a useful dialogue over the implementation of the rights contained in the Covenants. Giventhe fact that the reporting and other mechanisms under the covenants are established within a regime dominated by states, and that human rights have generally been viewed as sensitive matters, the mechanism of reporting can be described as the best possible rather than the most desirable. At the same time, both Committees have attempted to project the exercise beyond the pro forma exercise or diplomatic tête-á-tête that states would prefer that it be. They have attempted to ensure that reporting is an exercise states take seriously. It is thus especially important to consider the nature of the response of African countries to the reporting mechanisms established under each Covenant.


The ICESCR is primarily intended to enhance local and global social justice. It was specifically designed to ensure the protection of the rights to work; to fair and adequate employment; to education; to social security; to adequate mental and physical health; to appropriate shelter; and to reasonable standards of living for all. It also seeks to protect the family, and to protect minority languages and cultures. The Covenant is designed to promote social progress, freedom from want, and better standards of life as called for by the Universal Declaration. As of July 15, 1995, 131 states including thirty-eight African nations have ratified or acceded to the Covenant.

The main organ for the implementation of the standards contained in the ICESCR is the Committee of individual experts established pursuant to aresolution of the UN Economic and Social Council. Although not originally envisaged under the Covenant (and despite the occasionally self-deprecating remarks by its Chair, Philip Alston), the Committee has earned praise for its efforts to enhance respect for this category of rights. Since 1987, the Committee has devoted itself to the creation of mechanisms which devote serious attention to the effective realization of economic, social and cultural rights, both through reporting by states parties, and through continuing dialogue with them. In addition to the introduction of its revised reporting system in 1990, the Committee now takes the occasion of its biannual meetings to make pronouncements, known as "general comments." These comments have had the effect of advancing intellectual knowledge and practical action in the field.

Table I (infra page 72) reveals a number of interesting facts. Nearly twenty years after the coming into force of the Covenant, over 30% of African states still have not ratified the instrument. The number of ratifying states in each decade since the entry into force of the instrument has been roughly equal, with countries like the Gambia, Guinea, Libya and Kenya leading the way in the 1970s. Of the category of states that ratified the instrument in the 1970s, four (Mauritius, Mali, Guinea and the Gambia) had reports which were overdue. Among the latest countries to ratify the instrument are Malawi, Nigeria and Benin. Malawi's first report is due on June 30, 1996, that of Nigeria was scheduled to be submitted and considered at the twelfth Session in June 1995, and Benin's initial report is now overdue. Among the prominent non-ratifiers are countries such as Ghana, Botswana, Burkina Faso, and Sierra Leone.

The late ratification of a country like Nigeria, and the non-ratification to date by Ghana is somewhat intriguing given that both are prominent andvocal proponents of the need to address socioeconomic inequities on the international stage. Successive governments in both countries have de-emphasized the place of civil and political rights and focused on the need for "development." Newly independent South Africa signed both Covenants on October 3, 1994, and can be expected to join the ratifiers of the instruments, despite serious contestation over the inclusion of economic and social rights in the national Constitution. Of those countries which have ratified the instrument, over half (52%) have overdue reports, while of the remainder, reporting is either due at some future point in time, or their reports are pending consideration. Only Rwanda and Zaire, two countries which do not have stellar records in the field of human rights had reached their second reports.

From the above, it is fairly clear that ratification of the instrument by African states remains an outstanding question. Many may not regard this fact as being of much relevance. Consider however, the statement of the United Nations International Children's Emergency Fund (UNICEF) in relation to a much more widely ratified instrument the Convention on the Rights of the Child (Child Convention).

[A] universally accepted code for the treatment of children is a major step forward. It provides an unchallengeable platform for advocacy and action on behalf of children in all countries and in all circumstances, and it prepares the way for the next and obviously more difficult stage-the stage of moving from universal acceptance to universal observance.

No action on children can take place without reference in the first instance to the Child Convention, which has become a powerful tool of advocacy and mobilization, as well as a bench-mark from which standards in the area can be critically and universally assessed. This has correspondingly made UNICEF and the Committee established under the Convention potent forces in promoting those standards. By contrast, the ICESCR Committee andthe Covenant itself are routinely ignored in discourse and action on the question of development and socioeconomic issues, when both would have logically been promoted to play a similarly dynamic function. Unfortunately, the United Nations Development Program (UNDP), which should logically promote economic and social rights, has so far manifested a number of handicaps in adopting a rights-sensitive approach to its international mandate. Consequently, the most important issue with respect to the ICESCR from the African perspective, is the issue of ratification. Ratification is the necessary first step for all African states which claim to uphold the ideals contained in the instrument.

After ratification, the next critical issue is a timely and serious response to the reporting obligation. While the lateness of a report may not necessarily reflect a poor human rights situation, reporting is nevertheless an obligation that the states parties to the instrument have undertaken. Reports should not only be on time, they must also address-in a substantive fashion-the key issue for which the mechanism was established: the "progressive realization" of the rights in the instrument. Only in this way can a nation's respect for and belief in the instrument actually be gauged in a fair and objective manner.

2. The ICCPR and the Optional Protocols

The ICCPR codifies human rights in the civil and political arena. These include, among others: the right to life; freedom of association, expression and movement; and the right to organize. In addition, the ICCPR prohibitstorture, and cruel, inhumane and degrading treatment. Although the ICCPR came into force after the ICESCR, it has been given considerably greater attention, in part because of the emphasis placed on it by Western governments, but also because of the relative lack of conceptual clarity with respect to economic, social and cultural rights.

By July 15, 1995, forty-two African countries had ratified or acceded to the ICCPR. Of these, twenty-one were party to the First Optional Protocol, which allows for the filing of individual petitions. Only Mozambique, Namibia and the Seychelles have ratified the Second Optional Protocol abolishing the death penalty. Strangely enough, Mozambique has not ratified either the ICESCR, or the First Optional Protocol. Chad and Uganda are the most recent countries to ratify the ICCPR, having done so on June 9 and 21, 1995 respectively. Of those states which have ratified the ICESCR, only Guinea-Bissau has not ratified the ICCPR. Liberia has signed both instruments but is yet to ratify them. South Africa is in a similar situation.

There were a total of four reservations to the ICCPR, which, as Rosalyn Higgins has pointed out, are "rather few," in comparison to those from otherregions of the world. While there has been a marked increase in the scrutiny of African states under the First Optional Protocol, since the hearing of the first petition in 1978, there have only been a few more ratifications to the instrument by African countries, and the number of individual petitions remains insignificant. Table II summarizes the position of African states with respect to the First Optional Protocol.

While this record may appear rather dismal, some observers have viewed the African response to the Optional Protocol in a fairly positive manner. Thus Odinkalu et al, state:

It is noteworthy that over half of the countries in Africa have ratified the ICCPR and a majority of these ratifying countries are also party to the First Optional Protocol. This holds out considerable potential for better exploitation by African human rights advocates of the procedures of the HRC. The case law emerging from Africa appears to have made a significant contribution to the jurisprudence of the HRC.

Implicit in this statement is a call to African human rights activists to increase their use of the mechanisms. Failure to ratify both the ICCPR and the Optional Protocols thus remains a serious problem, as does recourse to the First Optional Protocol by individuals of those countries which are a party to it. The reasons for the somewhat muted response of individuals within these countries are varied-from a lack of knowledge of its existence and the intricacies of filing a petition, to the fear of doing so. In the case of Zaire, which has had both the highest number of complaints under the First Optional Protocol, and was one of the first African countries to ratify it, respect for the rule of law has greatly diminished, and the opinions of the Committee on individual petitions are routinely ignored. Nevertheless, consideration of individual petitions at the Committee has assisted in publicizing the dismal conditions in the country. The reluctance to file individual petitions may also have to do with the requirement that an individual have "exhausted all available domestic remedies," which in many African countries are both lengthy and intricate. Consequently, the overall framework for the administration of justice is hostile and unaccomodative.

More active involvement with the Human Rights Committee via the First Optional Protocol would have numerous beneficial side effects for the observation and eventual realization of economic and social rights. The first would come from a growing familiarity with the usage of international mechanisms, permitting the development of a dialogue and reducing governmental antagonism to the enforcement of human rights. Second, such a mechanism could also be used for developing more effective and cooperative endeavors between governments and NGOs, especially in light of the considerable involvement of NGOs in the representation of individualsat the Committee. Finally, African states would be able to inject into the discourse a discussion of their socioeconomic conditions, and ways and means of comprehensively addressing them in order to enhance the observation and protection of human rights as a whole. Ratification and subsequent interaction by African states with the ICCPR would thus directly enhance the role of the ICESCR, in the progressive realization of the rights stipulated in the ICESCR.

B. Human Rights in Multi- and Bilateral Relationships

The Development Set is bright and noble,
Our thoughts are deep and our vision global;
Although we move with the better classes,
Our thoughts are always with the masses.

International financial and development institutions (IFDIs), along with intergovernmental organizations (IGOs) and bilateral donor agencies (BDAs) have long played a prominent role in the field of socioeconomic development in Africa and the Third World in general. While there are certain salient distinctions in the manner in which all three operate, there are sufficiently significant similarities to warrant an analysis which brings them together. In the first instance, all are dominated by the countries of the North, and indeed the donor agencies are an exclusive creation of those countries wealthy enough to channel their resources into development assistance. Second, despite assertions that the administration of development assistance is an apolitical exercise, it is quite clearly linked to specific national interests, and a variety of other considerations such as the creation of markets and the perpetuation of structures of dependency and control. Finally, althougha number of studies have been undertaken on the linkage between the operations of these organizations and the observation of human rights, such studies are by no means exhaustive, nor do they cover all facets of the issue. This section of the Article considers how these organizations relate to the African context and what place human rights play in their operations.

1. IFDIs: Structural Adjustment and the debate over `conditionality'

The World Bank (the Bank) was instrumental in the design of the development plans and the large infrastructural projects of the 1960s, and has continued to play a prominent function in the African development matrix. Likewise, the IMF has evolved to play a significant role in balance of payments support and stabilization, as well as in the programs ofstructural adjustment and institutional reform that have been implemented throughout the continent since the early 1980s. These structural adjustment programs (SAPs), variously feature the liberalization of economic controls, privatization, de-indigenization, the introduction of market-driven economic policies and the promotion of primary exports. According to one source, these policies "appear to have both worsened the economic circumstances of LIDCs [Low Income Developing Countries] and increased the desperation of those states to attract foreign capital." A related consequence has been the phenomenal upsurge in the amount of African debt.

Initially both the Bank and the IMF were extremely reluctant to be drawn into the debate on human rights. However, through a combination of external pressure, as well as internal reform and orientation, human rights issues have come to feature in a number of different ways on the agenda of the two, albeit more so in the case of the Bank than the IMF. On the issue of human rights, the most the Bank has been prepared to say is that while it has a clear mandate to promote economic and social rights, the question of civil and political rights is an altogether different matter involvingan amendment to the Bank's founding Charter-the Articles of Agreement. Instead, to the extent that the Bank will become involved in civil and political human rights, it is from the perspective of the issue of "governance," described by the Bank's General Legal Counsel, Ibrahim Shihata, as "appropriate management of a country's resources, based upon rules, implemented by institutions, to ensure accountability." He states further that "[p]roper governance also implies predictability, and legal due process which, in turn, assumes a government of laws and not a government of men." It does not require a reading between the lines to discern that the message being articulated is that the Bank's concern with human rights extends only so far as they are relevant to the administration of loan disbursements and the implementation of its programs. In short, it takes an economistic approach to governance. Thus, some extremely contradictory actions have taken place in the name of the promotion of "good" governance.

Most recently, such confusion was manifest in the case of Kenya. There, the IFDIs initially suspended aid on the ground that there were problems with Daniel arap Moi's governance of the country, among which were the fact that his single-party state had remained in power for several years brooking no opposition. Aid was restored following approval of economic reform measures introduced by the Kenyan government. These reforms, however, did nothing to improve civil and political human rights in Kenya. Significant human rights violations, including the stirring of ethnic tension, crackdowns on the Press and dissidents, and socioeconomic strife, continue to date. Next door in Uganda, Yoweri Museveni has maintained a heavy hand over political opposition under the framework of his so-called "no party" system of government since 1986. Museveni's revulsion for and suppression of political party activity is no less intense than that of his Kenyan colleague. And yet, political liberalization has never been made a condition of aid, principally because Uganda swallowed the bitter IMF "pill" early on, and now enjoys a favoured position with the Bank and other Western lenders. Such examples make it clear that the Bank still has a considerable distance to cover in the incorporation of a genuine civil and political human rights element in its development assistance activities.

While the Bank is much more willing to admit involvement in the area of economic and social rights, proclaiming them its raison d'etre, closer examination demonstrates that such involvement essentially translates as thedisbursement of ever-increasing amounts of development assistance. Thus, in extolling the institution as a facilitator of the progressive realization of economic and social rights, Shihata asserts that "the World Bank is generally viewed by its members as an agency for economic development par excellence. The Bank's operations have reached numerous diverse issues, including population, education, health and social security."

Even if one allows certain concessions to the Bank, these are clearly undercut by the operations of its chief ally, the IMF. The Bank's relationship with the IMF plays itself out in a variety of ways, although in legal terms this is only specified in respect to cessation of membership in the IMF. If the link between structural adjustment and the violation of civil and political rights is allegedly tenuous, the same cannot be said about its connection to the progressive deterioration in the prospects for African countries to realize the economic and social rights that the Bank is so certain it promotes. Thus, for example, in a recent critique of the Bank'spositive self-appraisal of structural adjustment in Africa, Sayre Schatz illustrates why such an assessment is fatally flawed, and characterized by either a contrariety of results, mixed findings, or a lack of a significant relationship between reform, performance and outcome. He concludes that there are strong grounds to warrant the assertion that the evidence provided in the Bank's report fails to support the claim that its macro-economic reforms have promoted African economic growth, and may instead support the "hypothesis that their implementation has actually impeded growth in Africa."

But how exactly do Bank/IMF policies affect the realization of economic and social rights? Commencing with a very broad purview, one can see that, in Africa, the operations of the two institutions work to undermine the right to self-determination. This takes place in a variety of ways, ranging from the humiliating fashion in which "Paris Club" debt-rescheduling meetings take place, to the issue of conditionality. It extends to the manner in which Bank policy has become so deeply insinuated in national policy without the concomitant accountability that usually accompanies political power. In more specific ways, structural adjustment affectsworking conditions and the right to work through retrenchment as a result of deindigenization, privatization and the liberalization of trade controls. The extent of available health care and its cost is severely affected by the introduction (as in Zimbabwe) of user fees, which is an additional burden on people who are already impoverished and exist largely in a subsistence economy. The nature of educational services and their accessibility is affected by the increase in fees for tuition, which affects the ICESCR provision calling for free primary education for all. Finally, the ability to provide food and combat overall poverty is affected by the overall concentration on export crops and the removal of subsidies for market staples. Even conservative observers agree that, at a minimum, the IFDIs have the politics wrong.

All the above rights are mentioned in the ICESCR, but SAPs work in a fashion which undermines the prospects of governments being able torealize them. Thus, one commentator points to the austerity measures which have prompted widespread impoverishment and pauperization, spurring riots and protests, "a vicious cycle of political authoritarianism," and the anti-democratic inclination in the programs which leads to the installation of IMF and Bank officials in vital ministries and central banks of developing nations. Another observer has spoken of the "deleterious consequences" of SAPs including,

a severe deterioration in the abilities of these countries to uphold the economic and social rights of their peoples. The fundamental objectives of providing education, health care, housing, and domestic control of their economies have been abandoned, since SAPs by definition result in cut backs in funding for such programs. Privatization and de-indigenization, especially when carried out in conjunction with debt-equity swaps, have created the potential for loss of indigenous control of critical areas of the economy.

It is thus quite clear that, at a minimum, there are serious problems in the design and implementation of SAPs. Contrary to Shihata's assertion, SAPs in fact promote the failure to "progressively realise" economic and social rights, aside from their impact on the political context. Furthermore-whether or not this is an intended consequence-these policies, at a minimum, directly influence the failure to observe civil and political rights in Africa. While the Bank has taken some steps to alleviate the adverse consequences of SAPs, it is clear that a rights-based and rights-sensitive approach continues to elude it. Indeed, even following the wave of democratization that led to the collapse of a variety of long-standing dictatorships-from Malawi to Benin to Zambia-the Bank has still failed to change its approach to structural adjustment. The Bank's insensitivity to the changed circumstances is evident in its failure to effectively confront the African debt problem which hangs like an albatross over any reform efforts.

2. Economic and social rights in intergovernmental and bilateral relations

a. The operations of intergovernmental organizations (IGOs): The case of UNDP

While the Bank and the IMF are the most prominent international agencies involved in the African development scene, they are by no means the only ones. A variety of other organizations, such as UNICEF, the World Health Organization (WHO) and the International Labor Organization (ILO), are directly concerned with the implementation of development in these countries, and thus directly with the realization of economic and social rights. Of these, UNDP has made the most assertive attempts to link human rights and development, particularly via publication of its annual Human Development Report, and the Index of Human Freedoms (theIndex), and through articulation of the concept of "sustainable human development." The Index represents the boldest attempt by an IGO to both quantify and rank human rights observance. Unsurprisingly, it has run into considerable criticism from both governments and academics, principally because of the sources used, and the method of assessment employed. Most problematic was the selective use of human rights terminology, and the quantification of only political freedoms.

For the 1993 Vienna Conference on Human Rights the UNDP and the U.N. Human Rights Centre jointly prepared a document on democracy and development. The document comprised a synopsis of UNDP work in the area-extending from a variety of peace-building measures, to electoral assistance, national capacity building, regional support, discrimination and women-illustrating an eclectic shopping basket, with little internal logic or (with the possible exception of the last two) connection. The development of the Index and the end of the Cold War boosted hopes that the UNDP would assume a more active role in the linkage of human rights and development. Preparations for the World Summit on Social Development further fueled this aspiration. The Copenhagen Summit marked the return of economic and social issues to center stage. Following Rio on the Environment, Vienna on Human Rights and Cairo on Population, the Copenhagen meeting was convened in March, 1995 to consider the interconnected questions of poverty, economic security and social progress. The Declaration that emerged from this conference marks the latest addition to the international documents in this genre.

Unfortunately, many observers were disappointed that human rights issues were not given more prominence and that UNDP acquiesced in thisaction. Consequently in the "Alternative Declaration" issued by NGOs at the meeting, this problem was highlighted:

We believe that the Summit documents fail to recognize adequately the primacy of human rights as a prerequisite for a participatory and meaningful social development for all sectors of society, especially for children and such marginalized groups as people with deabilities [sic], indigenous peoples, people in occupied territories, refugees and the displaced. It also fails to note how the undemocratic nature of structural adjustment programmes undermine the rights of citizens and often leads to their repression.

The Declaration went on to decry the efforts being made at the Summit to reverse the achievements of the Vienna and Cairo summits, particularly in relation to women's rights and in undermining "the possibilities for the kind of fundamental changes required for the creation of just societies."

UNDP shares in the blame for the prevarication over the human rights underpinnings to development. In the first instance, the term "human rights," continues to be selectively employed in the organization, and is yet to be programmatically incorporated into its work. This has resulted in recourse to an elaborate lexicography which essentially avoids use of the term. Thus, phrases ranging from "sustainable development" to the most recently-adopted "human security," do not fundamentally differfrom or advance the human rights approach that has been in existence for decades, except to undermine and circumvent it. Second, like the World Bank, UNDP continues to equate its work in development with the promotion of human rights, which, as already pointed out, is not necessarily the case.

The problem of conceptualization and approach is manifest in the UNDP's more recently-developed Country Strategies for Sustainable Human Development, which to date have covered four African countries-Botswana, Sudan, Malawi and Egypt. The reports are supposed to present the range and diversity of approaches by differently-situated countries to the issue of sustainable human development. However, in the Sudanese report for example, there is no mention of the thirteen-year civil war, nor of the serious human rights violations that are taking place in the country. The forced relocation of communities in Southern Sudan is a human rights issue which covers both categories of rights. To crown it all, the report praises the government's efforts at decentralization, when it is fairly clear that this is merely a ruse to escape a democratic handling of the problem of self-determination for the peoples of Southern Sudan. If there is a prime example of an unsustainable human rights scenario, it is the Sudan.

Hopefully, the UNDP will further its attempts to construct a serious and sustainable human rights approach to development, particularly in the formulation of minimum applicable standards. This objective is partly being realized through the development of individual country humandevelopment reports. Furthermore, at the time of writing, a study team comprising leading specialists in the field is examining the impact of the UNDP's development activities on the enjoyment of all human rights. This is considered a necessary first step in the process of establishing an institutional framework in which the issue of human rights will be brought to bear upon the operations of the organization. The UNDP must be congratulated for having introduced debate on the issue of human rights and development into intergovernmental circles. In order to be of continuing relevance to the human rights struggle, however, the linkage between human rights and development needs to be made more forthrightly a component of ongoing UNDP activity. It must also deal with the omnipotence of the World Bank/IMF approach to development, which is the factor most responsible for undermining the progressive realization of economic and social rights in Africa.

b. Bilateral Donor Agencies (BDAs)

BDAs, such as the British Overseas Development Agency (ODA), the U.S. Agency for International Development (USAID), the Canadian International Development Agency (CIDA), and the several agencies of the Nordic countries, among others, have variously adopted and applied human rights standards to their programs of development assistance. A number of points can be made of the place of human rights within these organizations. First, there does not appear to be any carefully thought-out policy which is consistently applied to the management of development assistance. With only a few exceptions, policy in these institutions has in general not evolved far beyond negative conditionality-namely the policy of withdrawal of development assistance ostensibly to punish notorious human rightsviolators. Moreover, unlike the IFDIs in which there is direct (if only nominal) developing country participation in the formulation of policy, in the case of the BDAs, there is virtually none, with "consultation" appearing to be the preferred modus operandi. BDAs nevertheless face considerable pressure from their domestic constituencies, part of which comprise the membership of international NGOs working on the environment and human rights. Pressure from these consistuencies has influenced the direction of policy within the BDAs.

A twofold problem nevertheless remains: How can the BDAs make themselves relevant to the recipients of their aid while at the same time meeting the onslaught of conservatism, retrenchment and reform that is currently apace in almost all Western countries without exception? Relevance in the eyes of aid recipients requires, at minimum, a more democratic articulation of the notions of participation and accountability beyond the purely economistic (and at times overtly political) considerations that have dictated development assistance to date. The dangers of conservatism, on the other hand, may lead to a re-articulation of development assistance that is even more hostile to relevant human rights issues. Nevertheless, the opportunities exist for a candid and comprehensive re-evaluation of the arena and of the dynamically altering contexts as we approach the 21st century. In such a paradigm, the work of international human rights groups becomes critical.

3. The place of international NGOs (INGOs)

Most international human rights NGOs were created with very specific mandates, primarily in the area of civil and political rights, and have developed what can only be described as the "traditionalist" approach to human rights. This has both its benefits and its downsides. It is beneficial in so far as it can produce significant effects with respect to the single issue under scrutiny, such as detention-without-trial, or freedom of expression. Thus an organization such as Amnesty International-arguably the most powerful human rights INGO in the world-has become a household name, and more often than not, will receive the requisite attention from governments when it wants it, and with positive results. Such single-minded pursuit of an issue can be problematic, however, insofar as the wider contextual framework is concerned. Likewise, the focus on states as the primary rights-guarantors obviates a critical consideration of the wide variety of extra-state actors-ranging from guerilla groupings to multinational corporations, and from development agencies to arms dealers-who have come to impact upon, and influence the range and extent of observation or violation of human rights. Finally, the growing complexity of the fieldillustrates the links between structures and practices in the civil and political arena, and economic, social, and cultural factors and conditions. In sum, the broader structural questions that facilitate the violation of civil and political rights as yet remain beyond critical scrutiny and action. Clearly, there is more to be done in articulating an integrated, long-term approach to the issue.

A few organizations which are better known for work in civil and political rights have made sporadic forays into the economic and social arena, or at least attempted to forge a link between the two. In this respect, the excellent report on the World Bank by the Lawyers Committee for Human Rights marked an important and essential break-through for an organization that has been involved in traditional human rights work. It illustrates that such issues can be taken on and accommodated even within a "traditional" human rights framework. However, even as the Report made efforts to move away from the traditional focus of the Committee, its primary area ofattention was civil and political rights, and in particular the evolving phenomenon of "governance."

The focus on the Bank was also justified in terms of U.S. foreign policy. Thus, although reference is made to the Declaration on the Right to Development and the ICESCR, the Report stops short of developing a conceptual framework for a concise examination of the issue of governance in relation to the phenomenon of economic and social rights. The report assumes (and thereby implicitly endorses the Bank's position), that there are no problems with respect to the impact of the operations of the Bank on economic and social rights. Such a view simultaneously exposes the haunting influence of the dominant traditionalist human rights perspective. Governance as conceptualized by the Bank not only pursues a narrow interpretation of civil and political rights, it also obviates any serious consideration of the question of economic and social rights. The Lawyers Committee has since developed its program of monitoring the Bank and other international financial institutions, and recently released a comprehensive study of the Bank's operations in Indonesia.

At the present time, there are only a handful of INGOs that consider the issue of economic and social rights in any sustained and critical fashion. Among them are groups such as the Development Group for AlternativePolicies (Development GAP), the International Centre for Law in Development (ICLD) and the more recently established Centre for Economic and Social Rights (CESR). A number of groups that have been involved in traditional humanitarian and relief work, such as Oxfam, have also found themselves turning increasing attention to economic and social issues from a rights perspective. This has resulted primarily from an appraisal of the devastating consequences of SAPs. In the process they are discovering that governments are no less sensitive to criticism in this sphere than they are to the condemnation of their records in the arena of civil and political rights. However, as Weiss et al. have pointed out,

Most NGOs working for adequate food, clothing, shelter, and health care, conducted humanitarian rather than human rights programs. This meant that NGOs such as Oxfam were oriented more toward practical results in a country based on humanitarian concerns and oriented less toward lobbying for socioeconomic rights through the Committee of Individual Experts.

The growing complexities of the humanitarian scene, particularly since the crises in a variety of collapsing African states (Liberia, Somalia and Rwanda among them), has led to entirely novel issues which relate to the interface between human rights, humanitarian assistance, refugee protection and development. As yet, there has not been a lucid and comprehensive approach to the question. It goes without saying that this is among the most vexing issues of the present time, requiring not only comprehensivestudy, but holistic approaches as well-approaches that must bravely and in practical terms, confront the needs of the African context.

II. Economic and Social Rights in Africa: A Reprise

There is little need to restate the fact that economic and social rights suffered as badly in the colonial epoch as did rights of a civil and political nature. To the extent that any attention was paid to issues such as health and sanitation, shelter, working conditions, and the protection of indigenous cultures, these were largely deemed to flow from the largesse of the colonial master, rather than from the rights of the colonial subject. As an extractive system, colonialism was primarily concerned with how much it could remove and transport to metropolitan industry in terms of material (and initially) human resources. Figures relating to expenditure on defence and other coercive aspects of the state far outstripped those on any social service. Discriminatory and apartheid-like policies in virtually every colonial enclave ensured that the indigenous populace benefitted only partially from any of the developments of the time. As it was based on a system of extra-economic coercion, colonialism obviously had little time for the recognition of rights that would threaten or undermine this objective. Against such a background, the policies of independent African countries have in general been rather puzzling, even for those countries that were ostensibly more committed to the realization of economic and social rights, and were not simply paying lip-service to the notion. The puzzlement is lessened if one considers the fact that economic development was largely viewed as a right of the State, abstracted from the individuals who constitutedit. This was the veneer assumed by most African polities following the honeymoon of independence, and widely shared irrespective of ideological outlook. Thus according to Harry Scoble,

Whether the development scheme is formally state capitalism or socialism, the socialized investment function is controlled by the single party (or the "apolitical" military). Top-down planning is the rule. The individual has a right only to be "developed" at a pace and in a manner determined by the political elite; the individual has no right to participate in or to influence this development process-only a distant future right to contingent benefits.

In this sense, the State was the `people.' Both individuals and communities within the post-colonial State were subsumed in this artificial and unyielding geopolitical construct, a point sanctified in the OAU's rigid position on the question of national boundaries. In this perverse way, independence constituted the second and more deadly `partition' of Africa as what had hitherto been relatively autonomous communities were forcefully amalgamated and frozen within the sovereign nation-State. A look at the operation of the premier institution for African liberation and solidarity will illustrate this and several other points relevant to the present inquiry.

A. The OAU and Human Rights

1. A Background Note

Despite the socioeconomic and cultural legacy of colonialism, the OAU focused primarily at the political conditions of the newly-independent states of the continent. Following Kwame Nkrumah's famous dictum, "seek ye first the political kingdom," a two-pronged thrust was developed. This was concerned, on the one hand, with the fragility of the new States and on the other, with the emancipation of the continent's unliberated colonies. The main concern of the time was the eradication of imperial domination and the complete liberation of the continent. As a consequence, the Charter of the Organization of African Unity makes only scant reference to the "welfare and well-being" of the African peoples. There is no detailed elaboration of any rights save for those of member States. The Charter places a particular emphasis on sovereign integrity and non-interference in the domestic affairs of member States. The primary focus of the OAU Charter is solidarity and cooperation. While reference is made to the Universal Declaration, there is scant attention to human rights principles as such, although general OAU policies were to be directed toward a variety of activities that could be said to have human rights implications. Thus upon creation, the OAU established five specialized Commissions, of which two, the Economic and Social Commission and the Educational and Cultural Commission had the brief for economic and social issues.

The emphasis of the OAU over the first twenty years of its existence was political liberation, inter-State conflict resolution and State-oriented economiccooperation and development. The principal right to which the OAU initially directed its attention was the right to self-determination of colonial States. In the third decade of its existence, from the early 1980s to the 1990s, this focus narrowed to the twin phenomena of Namibian independence and the liberation of apartheid South Africa. Individuals and communities did not feature in this paradigm of self-determination, which explains the OAU's underlying hostility to movements such as those in Biafra and Eritrea that sought to challenge the notion of the inviolability of inherited borders. In this context, it is not surprising that military dictatorships and single-party governments abounded, allowing for only a limited degree of recognition and respect for human rights on the domestic front. This produced the paradoxical situation in which the 1960s through the 1980s were simultaneously the period of Africa's greatest liberation, and its most brutal suppression. Thus the lament of the organization's newest member-Eritrea's Isias Afeworki-at the 30th anniversary summit meeting in June, 1993, is quite understandable,

Although the OAU has often championed the lofty ideals of unity, cooperation, economic developments, human rights and other worthy objectives, it has failed seriously to work towards their realisation. . . . Thirty years after the foundation of this organisation our continent remains affected by growing poverty and backwardness. . . . The African continent is today a marginalized actor in global politics and the world economicorder. Africa is not a place where its citizens can walk with raised heads, but a continent scorned by all its partners.

To the extent that there were any achievements on the front of economic development, these have been largely sporadic and limited to individual countries. Nowhere, however, not even in the most affluent of states, has there been a concerted effort to establish a regimen that sought to view such issues as rights.

2. The Question of Refugees

In the sphere of refugees, the OAU fared somewhat better, recognizing early on that the plight of this vulnerable category of people was in need of urgent protection. Hence, in 1969 the organization promulgated the Convention on the Specific Aspects of Refugees in Africa, albeit over some initial resistance and prevarication. While the intention of the 1969 Convention was to complement its international counterpart-the earlier 1951 United Nations Convention-it is especially renowned for its definition of the term "refugee" which is significantly more expansive than thedefinition adopted in the earlier instrument. Many commentators have asserted that this is due to traditional "African hospitality." The situation on the ground however, does not always quite conform to such a description. Some observers describe this attitude towards the African refugee situation as ethnocentric and playing directly into Western desires and current designs in the field of immigration policy.

With respect to human rights, the 1969 Convention was equivocal. While Article IV prohibits discrimination against all refugees on the grounds of race, religion, nationality, membership of a particular social group or political opinion, it did not go as far as providing a catalogue of specific rights for refugees. The Convention was more sensitive to the maintenance of harmonious relationships between African states, than it was to therights of refugees as such. Hence, it could be asserted that the OAU Convention was protective of refugees qua refugees by default, rather than by design. It remains a fact that discrimination against refugees has been one of the most enduring problems of the African refugee scene. Furthermore, one of the most contentious issues with regard to the African refugee question has been the recognition that they too have rights, a fact that is vividly demonstrated in the refugee crises afflicting Africa today, and the nature of the OAU response to them.

It was not until 1981 and the promulgation of the Banjul Charter that the OAU gave normative recognition to the individual and to `peoples' as the subjects of rights. Nineteen eighty-one also coincided with the publication of the OAU's most elaborate program on social and economic development-the Lagos Plan of Action (LPA). The LPA was designed to propel the continent into the 21st century with the establishment of an African Economic Community (AEC) by the year 2000. In 1989, the Economic Commission for Africa (ECA) released the African AlternativeFramework to Structural Adjustment Programmes (AAF-SAP)-intended as the African reply to the stringent austerity measures imposed by the IMF, which commenced in the early 1980s. Together, the three documents provide a basis from which to arrive at a more complete picture of the approach to economic and social rights from the continental perspective. We begin with an examination of the first, the Banjul Charter.

B. Economic and Social Rights in the Banjul Charter
1. The Normative Framework

The Banjul Charter, which has often been extolled as a unique conceptualization of the notion of human rights, contains several provisions on economic and social rights. It also has a number of newly-codified rights, such as the right to development, the right to peace, and the right to a healthy environment, marking itself out as the first international instrument to enshrine such rights. The preamble to the Charter clearly demonstrates where the emphasis of the document lies, stipulating that it was henceforth essential to pay particular attention to the right to development, and that civil and political rights cannot be dissociated fromeconomic, social and cultural rights in conception as well as universality. While some observers have argued that this statement is merely an assertion of the necessity to consider development as a right and of the interconnectedness of the two categories of rights, it is interesting to note that the preamble goes on to state that "the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights."

Examined in light of the extensive claw-back clauses attending the recognition of civil and political rights in the document, such an emphasis was clearly not accidental. Indeed, the bias in the Charter led some early commentators to believe that in the process of implementation of the Charter, the African Commission would, "undoubtedly grant a State great(er) latitude if economic and social rights are promoted at the expense of civil and political rights." The record of the Commission to date, manifests no such bias, raising questions once again, about the extent of the commitment manifested in the Preamble to the Charter.

Given that emphasis, and in light of the post-colonial history of the continent, one would expect that the substantive aspects of the instrument would amplify the focus on economic and social rights. However, a critical examination of the specific rights in the Charter raises questions about the manner in which they were couched, and about the extent of the commitment of the OAU to their realization. Such ambivalence can beretraced to the preparatory discussions over the Charter, and found in the rapporteur's account of the debate over the issue. In addition, a systematic consideration of the articles will reveal something else, namely a lukewarm commitment to the application of critical and genuinely progressive standards in the area. For example, the Charter is silent on the right to create trade unions-a fundamental aspect of the right to work, and the freedom of association and organization of labour. The absence of such a right must be considered in view of the claw-back clause enshrined in Article 10, which provides for freedom of association. Article 10 stipulates that the right is exercisable provided that the individual "abides by the law"; this when numerous domestic legal regimes around the continent outlaw or severely proscribe trade union formation and activity. The problem is compounded by Article 29, concerning the duty to preserve and strengthen "national solidarity," which could be (and has been) interpreted to mean any oppositional activity, whether in the political or economic sphere.

The Charter also produced a number of surprises, the first being the guarantee of the right to property, a right which does not appear in the international Covenants, and is clearly of questionable facility in the African context for a number of reasons. First, is its association with individual privilege, and vested (largely colonial and neo-colonial) interests in a context which has been plagued by exploitative relations deriving from property ownership and unequal exchange. Second, it raises questions about the issue of tenurial rights, land reform and equality in access to land-serious questions for both the rural and urban poor in independentAfrica and directly related to a series of other rights. Given both these issues, one would imagine that such a provision should have attempted to render a dynamic and qualitatively different conceptualization of the right. Furthermore, it has also been pointed out that feminist analysis could take note of and progressively utilize the right to the acquisition and inheritance of property in Article 14 in such a way as to defeat customary practices that inordinately deprive women of their property rights. However, the Banjul Charter gives no indication that this is the direction in which it intended to move with respect to this right. In the final analysis, the Charter made no creative attempt to re-interpret the right as a mechanism of empowerment of Africa's dispossessed masses and to foster conditions of equality in its exercise.

Article 15 stipulates that every individual has the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work. Economic conditions and the fact that the majority of the population are self-employed subsistence farmers place limitations on the extent to which this right can be realized. There are nonetheless several dimensions from which the article could be approached in order to achieve its positive recognition and progressive realisation, with particular regard to working conditions and the principle of equality.

Article 16 covers the best attainable state of mental and physical health, and the obligation to take the necessary measures to protect the health of the people and to give medical attention to the sick. Finally, Article 17 covers the right to education. Unlike the ICESCR equivalent, the article does not mention free primary education, despite the guarantee of such facility being a staple-usually by the year 2000!-of African politics.

Missing from the Charter are the rights to social security, the right to an adequate standard of living, and freedom from hunger, all of which are contained in the ICESCR. Of these, the absence of the last-the right to food-is perhaps the most striking. The omission can nevertheless be retraced to the fact that while ecology and environment provide some explanation for the food crises that have afflicted the continent, the dominant problems are political and socioeconomic, namely, the lack of adequate food security policies, and the extra-economic coercion of the peasantry. Both are a product of and facilitated by the inordinate concentration on export-crop production, which characterizes the majority of African economies. Compounding the problem is the failure to devise amicable means for the resolution of conflicts, frequently resulting in war and famine.

What, in the final analysis can be said of the Banjul Charter's position on economic and social rights? First, the content of the articles is a significant letdown from the promise of the Preamble, and belies what could have been an altogether novel and radical approach to the interconnectedness of the two categories of rights. Second, the focus of these rights is primarily the external dynamic-the elements of historical exploitation and contemporary maldevelopment-without a parallel approach to the inequities of the domestic arena. Apart from what the Charter contains, what it fails to mention speaks even louder of the actual position of African leaders on these rights. Finally, the extensive restrictions in the recognition of civil and political rights, redound negatively on the possibilities for the progressive realization of the few economic and social rights contained in the document.

2. The Question of Implementation

Having been ratified by the requisite number of African states, the Banjul Charter came into force only five years after promulgation. While the fairly speedy ratification of the instrument was welcome, the fact remains that the mechanisms providing for the enforcement of the rights in the Charter are weak. Furthermore, both the publicity about the Charter and the creation of the Commission have thus far done little to encourage petitions relating to economic and social rights. Indeed, the past Commission Chairman (in a rather pointed reversal of the explicit philosophy of the Charter), stated that the Commission would concentrate on civil and political matters. This was necessary, he argued, because any attempt to deal with economic and social rights would "result in too many cases and in too many countries" to cope with. Such an attitude may partially explain why, of the more than 140 communications received to date under the complaints mechanism of the Charter, none have related to Articles 14 to 17-the provisions in the Charter relating to economic and social rights.

The evolution of the African Commission has been steady, but unremarkable, with significant resolutions being recently adopted onissues such as the right to a fair trial and freedom of association. However, in performing the functions stipulated under Article 45(1)(b) of the Charter, there has been no attempt to marry the focus on civil and political rights to the progressive achievement and realization of economic and social rights. For example, the resolution on fair trial could conceivably have been extended to cover the status and rights of indigent defendants, public-aided legal assistance, or the critical issue of "popular" justice.

With respect to the issue of associational rights, the Commission could have taken the opportunity to make observations on trade union rights, as well as on rights linked to such activity, in much the same way as the Committee on Economic and Social Rights does on a regular basis. The Commission has also failed in its general commentary, to make any mention of issues such as poverty, development or SAPs-all of them matters that are central to the broad struggle for human rights in Africa today. With the recent application of political conditionality to the extension of development finance, the Commission could have played a role in seeking a more comprehensive and relevant interpretation of the notion than the negative conditionality that has hitherto been applied.

While the substantive content of the Banjul Charter came up far short of the pledge it makes in the Preamble, the guidelines for the submission of states parties' periodic reports drafted in 1988 provide a wider framework for the implementation of those unfulfilled aspirations. The guidelines devote considerably more attention to economic and social rights than theydo to civil and political rights. Only three pages are devoted to the latter, while those on the former extend to eighteen. Furthermore, while the Charter is silent on a number of rights, the guidelines require reporting on, inter alia, equal opportunity for promotion, rest, leisure and holiday with pay, the free operation of trade unions and the right to strike. A basis thus exists for much more vigorous action on economic and social rights by the Commission than is laid out in the Charter. Some tentative steps would have to be taken to remedy the general inertia in this area, however. The African Commission could begin by initiating a process of imaginative translation of the bare rights in the Charter into appropriate frameworks for implementation.

The Commission can begin to approach this issue by borrowing approaches to the issue developed by both its regional counterparts-the Inter American Commission and Court on Human Rights and the European Union system-and translating those approaches in the context of existent conditions on the continent. While neither of the two have devoted as extensive attention to economic and social rights as they have to civil and political rights, a look at what they have done in the area would be instructive. In Europe, the adoption of the European Social Charter in 1961 as the counterpart to the ICESCR, never led to any significant action primarily because of a lack of political will. Nonetheless, recent efforts at the resuscitation of the Charter and the establishment of an enforcement mechanism have led to the formation of an expert group to seriously examine the issue, and should provide some guidelines for the Commission in formulating an appropriate approach to the issue. Moreover, theEuropean Commission has come closest to considering the issue of whether "inhuman and degrading treatment" can be applied to socioeconomic conditions.

A number of interesting developments have taken place within the Inter-American system too. First, an Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (the Protocol of San Salvador) was promulgated in 1988. In contrast to the ICESCR it contains a petition mechanism on the right to education and on trade union rights. Although the Protocol of San Salvador is yet to come into force, the IACHR has recommended the adoption of local legislation based on it. In addition, the Inter-American Court has considered the effect that the provisions requiring the equivalent of "exhaustion of local remedies" would have on an indigent person, and whether such requirement could be waived. Advisory Opinion OC-11/90 of the Court ruled that indigent persons do not have to exhaust legal domestic remedies if they can demonstrate that their economic condition prevents them from obtaining legal counsel. While the other regions of the world are still in the process of developing a more concise application of economic and social rights, there is still much to be gleaned from theformulations in the establishing instruments, as well as the modes of implementation that have been adopted.

The failure of the African Commission to articulate economic and social rights in a more aggressive fashion is clearly an expression of a political problem, which only gains magnitude in light of the acute nature of the economic and social crisis faced by African states today. The inclusion of new rights in the Banjul Charter was instrumental in the struggle to elevate them to the international arena, and boosted attention to economic and social rights globally. Unfortunately, the performance of African states and of the Commission in the progressive development and realization of these rights has not been exemplary. At the same time, African human rights organizations have only recently woken to the necessity to deploy the mechanisms of the Banjul Charter to productive domestic use. The establishment of the NGO Forum to meet at the same time as the bi-annual Commission sessions, was an extremely innovative idea, and can be credited with many of the reforms introduced by the Commission. At the same time, the pressure on the Commission tapers off immediately after the sessions have ended. Imaginative strategies for the activation of the Commission demonstrate that the success of the mechanism depends as much on popular forces and activists as it does on the members of the body.

C. The Lagos Plan and the AAF-SAP

At the beginning of the 1980s, African heads of state and government came together to consider the approach of the OAU to the issue of social and economic development. From these deliberations emerged the Lagos Plan of Action (LPA), aimed at the self-reliance of African countries, self-sustaining development and economic growth. The LPA noted that of the thirty-one countries designated by the United Nations as least developed (LDCs), twenty of them came from Africa. There was thus a need to reverse this situation. The Plan was intended to promote the development of the nations and peoples of Africa and their progressive integration over greater regional areas and to set up an African Economic Community by the end of the century. The Plan comprised five action areas: (1) environment, (2) the LDCs, (3) energy, (4) women and (5) planning, statistics and population.

The LPA was heavily biased towards macro-economic factors, and reflected a continuing passion for the large infrastructural projects that had been the typical emphasis of development planning in the early years of independence. One notable exception was the focus on women -presaging the attention that followed the Nairobi Conference and the Women in Development schema of the donor agencies. The LPA recognized the fact that traditional discriminatory practices were inhibiting the involvement of a significant section of the population, as well as being counterproductive to the development process. Parpart compared the Plan to another simultaneously issued by the World Bank, and found that the latter was woefully inferior in considering the interests of women. According to her, the LPA also spurred "heartening improvements" for women in Africa.

By including women as a specific point of focus, the LPA represented the first tentative forays away from state-centered to people-based foci in the field of African policy formulation. The bridge was eventually crossed withthe Khartoum Conference on the Human Dimension of Africa's Economic Recovery and Development, in 1988 which witnessed a concerted effort to shift the focus from the state to the people. The apex of this movement was the AAF-SAP in 1989, which was a direct critique of the debilitating IMF policies that had operated in Africa since the early 1980s. The critique argued that these programs had frustrated both the African peoples upon whom they had been imposed, as well as the institutions that had designed them. Even though they had began to respond to such failure and frustration, the response was slow and evasive. The critique went on to state, "Most proposals seem to stick to the core of the old types of SAPs and to merely add some aspects of a human face." It then proceeded to give a point-by-point appraisal and recommendation of what should be done. To date, the main recommendations of the AAF-SAP remain largely valid, but the movement by IFDIs on the issue has been slow. The preference remains for the SAPs applied in the 1980s, ameliorated through poverty-alleviation programs which target the most "vulnerable" members of society. Even these have had questionable results, however. Seeing that SAPs are the most debilitating economic reform policies currently in place in Africa, IFDIs would do well to accord more attention to the critique.

At the annual Summit meeting of OAU Heads of state and government in Abuja in 1991, the OAU adopted the treaty establishing the African Economic Community (AEC) thus achieving the pinnacle of the Lagos Plan. The key elements in the treaty are spelled out in Article 4, and include, inter alia, the promotion of economic, social and cultural development and the integration of African economies in order to increase economic self-reliance and indigenous and self-sustaining development. However, as Muna Ndulo has observed, it is clear that African heads of state remain addicted to the notion of state sovereignty, and are also unlikely to actively foster some of the key elements in the treaty, such as those concerning the free movement of peoples. Moreover, even though the AEC Treaty establishes an African Court of Justice, Chris Peter points out that the deficiencies in the Court's enabling statute do not make for an optimistic reading of the institution.

Meanwhile, at the other end of the spectrum-the people's corner-significant developments have been taking place in the bid by individuals and communities to seize the initiative and transform the debate over economic and social questions on the continent. The most prominent of these was the unanimous adoption of the African Charter for Popular Participation in Development and Transformation (Charter for Popular Participation),which stemmed from a frustration with the failure of traditional development paradigms to appreciate the role of "popular participation." Consequently, the Charter for Popular Participation called for the encouragement of increased participation by governments, community groups, individuals and the international sector in the design and evaluation of development projects. The extent to which the Charter for Popular Participation will actually affect the operations of these groups remains to be examined.

Finally, however, the continental movement on the issue of socioeconomic development has been sporadic, and uninspiring. The high-sounding promises of the LPA and AAF-SAP and more popular participation have been drowned in the battle-cries of warlords in countries like Somalia and Liberia. As internal friction and conflict has caused the OAU to turn its attention all the more to issues concerning security, displacement and conflict resolution, economic and social rights have been relegated even further down the scale. Paradoxically, all this is occurring against the backdrop of a terrifying social and economic crisis that has placed most African countries on the brink of bankruptcy and holds them in continuing and ever more extensive ransom to the dictates of the IMF and the World Bank. In such a situation, it becomes imperative to consider how proactive measures can be pursued in order to reduce, and eventually eliminate these problems. Such preventive action must include not only a greater emphasis on internal democratic structures, but on the economic and social frameworks on which these are constructed. For a consideration of some of the ways to approach these issues, we turn, by way of conclusion, to the domestic context.

III. Back to Basics: The Imperatives of Domestic Action

Despite the fairly progressive developments in the realization and protection of human rights at the international level and the existence of an evolving framework on the regional front, the essential point of such activity must be to influence and transform the domestic context. In the words of Theo van Boven, international procedures,

can never be considered as substitutes for national mechanisms and national measures with the aim to give effect to human rights standards. Human rights have to be implemented first and foremost at national and local levels. The primary responsibility of States to realize human rights is vis-a-vis the people who live under the jurisdiction of these States.

How is this to be done? The vast disparity and number of African countries and the sheer complexity of a host of domestic variables preclude a microscopic scrutiny and analysis of country situations in a study of this size. Such an exercise must nevertheless be carried out, not only to bring the international and regional dimensions to bear within the domestic context, but also for a more complete appreciation of the possibilities and of the limitations presented by the individual struggles to reinvigorate attention to economic and social rights. This part of the paper confines itself to an overview of the most critical issues involved in that struggle.

Top on the list are the process of democratization and the intricacies of constitutional reform, or to employ Albie Sach's eloquent phrase, the "right to be naïve." Following in close succession are the related questions of popular participation and extra-governmental activism within the context of a "structurally-adjusting" framework. Such an examination must consider the need for the rearticulation of standards and mechanisms for the progressive enforcement of economic and social rights in the African context. This must be done by looking at the dynamic link between international political economy and domestic structures which exclude and dominate people. It must also extend the parameters of participation beyond local and regional boundaries. In the process, it must confronttraditional orthodoxies about sovereignty, self-determination, the accountability of international actors, and the obligations of truly popular and participatory government.

A. Reconsidering the Structural and Normative Framework:
or the `Right to be Naïve'

As Africa approaches the end of the twentieth century, a number of factors relevant to a consideration of the domestic context in which human rights are to be realized are immediately manifest. These can be examined at two levels-the macro- and microscopic-although the demarcation between the two is by no means so succinct. At the macro level, the most apparent factor is the process of democratic reform, ignited in many countries by the tremors of the late-1980s and continuing to find expression on a variety of different fronts, from contexts like Nigeria and Algeria, to less volatile situations such as Benin and Malawi. A lesson common to all is that without a strategy that combines both the aspirations for political liberation with the imperatives of economic sustenance and empowerment, any gains will quickly disintegrate. Put another way, the exercise of the right to vote is no guarantee of freedom from want or hunger.

Central to this process must be the reconceptualization of state power, even as the eruptions in Somalia and Liberia test the very notion of the post-colonial African state. The fact is that whether by omission or commission, the state still has a significant role to play in African politics and society. Consequently, the first objective of the struggle must be to positively influence the processes of constitutional reform already underway in a variety of different countries; here finding expression as the Conférences Nacional (CNs); there as a Constitutional Reform Commission (CRC), elsewhere, in the activities of non-governmental actors. If the promise of post-independence constitutionalism was lost on the rocks of demagoguery and "imperial presidentialism," then the second wave should not be similarly undermined by the failure to incorporate economic and social rights into constitutional frameworks in a comprehensive and dynamic fashion. While a democratic and progressive Constitution is not the linchpin to greater human rights observation, the absence of one clearly does not enhance it. Scott and Macklen provide the most articulate reasoning for the need to begin with the Constitution,

Whereas the constitutionalization of social rights would be a recognition of the fact that adequate nutrition, housing, health, and education are critical components of social existence, the exclusion of social rights from a South African constitution necessarily would result in the suppression of certain societal voices. Perhaps the strongest reason for including a certain number of economic and social rights is that by constitutionalizing half of the human rights equation, South Africans would be constitutionalizing only part of what it is to be a full person. A constitution containing only civil and political rights projects an image of truncated humanity. Symbolically,but still brutally, it excludes those segments of society for whom autonomy means little without the necessities of life.

The process of extrapolating economic and social rights and constitutionalizing them is nevertheless a struggle of political negotiation, tempered by the realities of individual country situations, rather than of the wholesale adoption of rigid international principles. The scale, number and content of economic and social rights can be the subject of contestation; the fact of their inclusion should not. The stronger elements of the Banjul Charter, such as those contained in Articles 25 and 28, can form the basis for articulating a firm state duty to eliminate discrimination and to protect disadvantaged social and political minorities. In addition, however, there is a need to develop new instrumentalities for the control of governmental excess, and to protect the essential parameters of a decent human existence. In this respect, the need to cultivate a receptive and dynamic Judiciary becomes paramount. Elaborating on matters of tenure, autonomy and protection within the Constitution would contribute to the achievement of this objective by establishing a precise framework of rights and obligations, and a foundation upon which a basis for the equal treatment with respect to property rights can be formulated. Simultaneously, more attention should be paid to the potential for the development of alternative methods of economic and social empowerment, methods that lessen the burden of the state, while assuring that human rights standards are not undermined.

At the microscopic level, the constitutional framework can also begin to address the question of priorities. This would provide a constitutional basisfrom which to monitor the debt. It would also allow the doctrine of "noxious" or "odious" debts to be applied more vigorously when state resources are expended on the purchase of arms or other non-essential goods. Patricia Adams has spoken of the need for a constitutional balanced budget provision which would bring the issue of prioritization within the context of a constitutionally adjudicatory process. Critical to such an endeavor would be the localization of SAPs, which are currently carried out beyond the pale of domestic action, participation or control. Consequently the practice of writing budgets at World Bank headquarters (and imposing unreasonable conditions and unjustifiable social sacrifices) can be challenged from a constitutional foundation. In the context of large populations of illiterate and marginalized people however, and the continuing influence of Elysée and Westminster systems of government, such a provision would need to be buttressed with local grassroots frameworks. To do so entails not simply the decentralization of state power, but the corresponding destruction of local autocracy-often epitomized in the successor to the colonial chief. In this way, the debate on economic policy becomes as much an issue of national concern, as it is a question of local involvement and action.

The few examples given above illustrate the macro- and microscopic levels at which action in the area of economic and social rights is necessary. But it is at the local level-the level of extra-governmental activity-that the struggle to effect a progressive policy for the realization of these rights should primarily focus.

B. The Local is Global: Linking Participation, Cooperation and Activism

If among international NGOs the notion of economic and social rights has only recently been adopted as a focus of action (and even then in sporadic fashion), the African context is even less encouraging. Despite operating within a context of severe social and economic strife and turmoil, the vast majority of local groups are involved in traditional human rights work. At the other end of the spectrum, there is an equally great number of groups involved in development and humanitarian work. Unfortunately, the twain rarely meet. Only recently, to cite one example from Uganda, have groups working in support of people with AIDS begun to liaise with groups working on legal and human rights. At a continental level, only the women's human rights movement has developed a cogent and holistic approach to the concatenation of the two categories of rights by, for example, linking the struggle for land rights to the political framework, and the structure of the family to the related socioeconomic issues that pervade such questions. Similarly, at the regional level, womens' groups operate more closely than do groups working in the broader human rights field. Such `networking' has greatly boosted the strategic and conceptual development of the movement on the continent.

It is also essential to consider a vast array of different mechanisms that can be established (and supported at minimal cost) to both decentralize and popularize the exercise of political power. Institutions ranging fromSocioeconomic Commissions to Ombudspersons, would help in the realization of such an objective. Such institutions would be critical, for example, in adjudicating grievances about health care and medical services. They could oversee the situation in relation to access to education, and be deployed to overcome general administrative vice. The same is true for the issue of corruption which left in the hands of government, is akin to charging the monkey with responsibility for burning down the forest. However to the extent possible, there should be a shift away from government. Rather than relying solely on a government agency to track the issue of equality in education, this function could also be executed by an NGO involved in issues of non-discrimination. The compilation of socioeconomic indices and statistical data for each area of activity in which an NGO is involved (from prisons to children to refugees etc.) should become standard practice for all NGOs.

Human rights groups should join with groups working in development to track real incomes and measure the effectiveness of World Bank/IMF social "safety nets" and poverty-adjustment schemes. This would form part of the process of monitoring the impact of SAPs on economic and social rights, particularly access to health, education and social services. Given the premium placed on privatization and de-indegenization, NGOs need to evaluate what impact this process is having on access to shelter, property rights and rights of non-discrimination. Much more should be done to encourage the erection of individual Economic and Social Rights Chapters, as Albie Sachs suggests, in trade unions, schools and other public and private institutions simply to monitor the impact of SAPs on the people's daily lives. More specialized groups devoted to the compilation of timely, multi-disciplinary and relevant data, need to address themselves to the implications of their work on social and economic rights.

To say that such action is necessary for human rights groups is to state the obvious. What is really critical however, is to begin the process of both encouraging a transformation in focus and a linkage to the broader context of their operations. Such activity could be commenced through the establishment of Country Committees on economic and social rights, and a regional or sub-regional Coordinating Committee which would operate as a clearinghouse for both information and strategies employed in different parts of the region. A study on the impact of SAPs in a country like Tanzania, which has had such a program for several years, would provide significant support to activists working in a country just about to embark on one. This would be of particular utility with respect to World Bank/IMF programs on poverty-reduction and social welfare "nets," to cite just one example. This is especially important in the face of growing regional initiatives in which governments are coordinating not only economic policy, but also exchanging ideas on the control of opposition movements and the destabilization of dissent.

But SAPs are not only confined to Africa, they are truly global in ambit and application. African human rights groups need to develop strategies of coordination and support with groups working in the Latin American and Asian contexts, as well as to begin a more active liaison with those inWestern capitals concerned with the ramification of development assistance and its impact on human rights. Many of the methods employed in litigation, advocacy and promotion can be borrowed from and usefully translated into the African contexts, even from a country like the United States, despite official apathy for this category of rights. Strategies such as suing arms dealers for injury done by assault rifles, should at the very least be considered for application in the international context. As conservatism gains sway and lays waste to the welfare state, many more in the developed countries will come round to the realization of the need to consider human rights work in an integrated fashion. The experience of Social Action Litigation (SAL) in India dramatically radicalized human rights activism in that country, and, prompted by a sympathetic Judiciary, provided an exemplar of the use of law in the service of broadly-defined human freedoms. Even in the absence of an enabling constitutional framework which permits such action, African activists can borrow the methods deployed by their Indian compatriots in order to achieve a similarly revolutionary reconceptualization of the notion of human rights.

The issue of the local operation of movements is, of course, critical to the success of any strategy for the reinvigoration of economic and social rights in Africa. Akwasi Aidoo brings together the most essential tenets of a grassroots strategy for human rights groups that is simultaneously linked in its focus and sustainable in its ambit:

[W]ork at the level of basic needs must itself be done with an eye to human rights issues. In the end, development activities must be entry points for enhancing human rights; specifically, human rights work must incorporate development action. For example, working to protect and defend the civil and political rights of refugees ought also to include activities that would enhance their food security. Working with rural dwellers to enhance their food security also ought to include addressing issues such as land rights, security of tenure and their capacity to defend their rights through existing legal means. Similarly, a project to improve maternal health among the poor would also need to address questions of reproductive health.

There is obviously a need to go beyond what Aidoo refers to as the "commando" campaign approach to human rights work. According tohim the process of the grassroots defence of human rights must be executed through promotional and empowering social action. While this is true, what is more important is to develop approaches that cover all fronts. We should not therefore shift to "promotion and empowerment" without ensuring that there are groups involved in advocacy, in litigation and with the other tenets of "traditional" human rights work. Work on economic and social rights must be truly interdisciplinary, covering those involved with development, humanitarian work and discrete political and social minorities.

In conclusion, the possibilities of undertaking collaborative work with governments, in for example tackling the deleterious IMF/World Bank policy-formulation, should not be ruled out ab initio. This is especially relevant in contexts where governments lack the material resources to gather information, or to take positive action. Where such action assists in meeting reporting and other obligations under the international framework, or in making governments more responsive to them. Governments can utilize the informational resources of human rights groups, for example, in order to make the case for the cancellation of debt accrued over the years, and for a less-rigid application of SAPs. Governments could utilize these same resources for a more rigorous and concerted articulation of the "noxious debts" defense, in a bid to make a case against the disproportionate sharing of the burden. It should be remembered that economic and social rights are to be "progressively realized," and the evolution of strategies for their achievement may not necessarily map those of civil and political rights. In sum, the approach to economic and social rights in Africa requires a wholly novel approach, which must commence by building on what is already in place, and designing appropriate structures and strategies to face what lies ahead.

IV. A Word in Conclusion

This study can only be considered as the first tentative step in a long journey yet to be made. It has principally sought to clarify the situation with respect to the conceptual and practical issues involved in the struggle to promote economic and social rights activism in Africa. Such an approach was necessitated both by the rhetorical posture of the leadership on the issue, as well as by the lack of critical intellectual treatment of the area. TheArticle aimed solely to bring together previously unexplored dimensions of the international, regional and national contexts in which economic and social rights in Africa must necessarily be explored. The next stage must be an articulation of appropriate strategies within specific domestic contexts, while at the same time drawing upon international linkages of solidarity and cooperation in order to place economic and social rights activism firmly on the agenda of future human rights work.


  • This study represents the first phase of an attempt to come to grips with the operationalization of economic and social rights in Africa in an activist fashion. It examines broad questions relating to the international, regional and national aspects of the phenomenon. The second part grapples with the intricacies of the domestic arena. I am grateful to the Ford Foundation for its support of the project and in particular to Margo Picken for her commitment to the idea. Philip Alston, Yash Ghai, Tomas Hammarberg, Mahmood Mamdani and Danilo Türk gave of their time to provide a more concise focus to the project. Sylvia Tamale played Devil's Advocate and Chief Critic, while the students in my Human Rights Seminar provided a stimulating context in which to debate many of these issues. Larry Cox, Rolf Knieper, George Okoth-Obbo, Sigrun Skogly, David Weissbrodt and Claude Welch made substantive comments on an earlier draft of the paper. I am deeply grateful to Cheri Attix of the California Western International Law Journal for her excellent editorial work and probing questions which forced me to reexamine many issues I have hitherto taken for granted.
  • LL.B (Hons) (MUK); LL.M. S.J.D. (Harv.), Dip.L.P. (LDC). Senior Lecturer, Faculty of Law, Makerere University, Kampala, Uganda, and Visiting Professor, University of Minnesota Law School/Institute of International Studies (1994-1995).

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