In Argentina, a local group instituted a case invoking the right to health against the government asking the court to order the state to manufacture a vaccine against Argentine hemorrhagic fever, which was threatening the lives of 3-5 million who live in the endemic area. The state was unable to carry out a massive vaccination campaign due to lack of an adequate quantity of the vaccine. Commercial laboratories could not produce it either, for the vaccine was not profitable. In 1998, the court of appeals established the government’s obligation to produce the vaccine and set a binding deadline. The court based its judgment on the UDHR, and article 12 of the International Covenant on Economic, Social and Cultural Rights. These international instruments have been incorporated in the domestic law of Argentina and are considered as integral part of the Constitution.

The above case was presented for discussion at a national workshop jointly organized by APAP, the Ministry of Justice and Civil Service Reform Ethics Sub Program on January 25 and 26, 2001 with the objective of examining the enforceability of human rights in Ethiopian courts. The majority of the participants, which were drawn from federal and regional governments, law enforcement agencies and courts, agreed that similar case could be brought to Ethiopian courts.

Although majority of the participants support the view that similar case could be brought before Ethiopian Courts, they did not resolve the issue of justiciability of economic, social and cultural rights at courts of law. The long established view puts a hard and fast rule alleging that certain sets of rights are justiciable while others are not. Evidently there is a consensus among legal professionals with regard to the justiciability of civil and political rights. Violations of the right to life, liberty, the rights of arrested, detained and accused person, the right to privacy etc. are justiciable rights and can be brought before a court. When it comes to economic, social and cultural rights, however, they cast doubt on their justiciability. The proponents of this view are unable to see that “The dignity of an individual should not be divided in to two spheres of civil and political and that of economic, social and cultural.”

In fact, the issue of the justiciability of economic social and cultural rights has always been a gray area. Those who hold economic, social and cultural rights as non-justiciable argue that the state is bound to fulfill this obligation provided that resources are available. In other words the practical realization of these rights depends entirely upon the availability of resources of the country in question. It will be far fetched, for them, to think about the enforceability of these rights in court of law particularly when a country is poor. This implies that neither has a person the right to lodge a complaint related to ESC rights nor force the state to implement these rights unless he/she makes sure that sufficient resources are available.

It is worth nothing that the approach, which classifies certain sets of rights, in this case, civil and political rights as justiciable and economic social and cultural rights as non-justiciable is a misleading one. This is because it disregards the individual rights to enjoy freedom not only from fear but also from want. Apart from this there are rights, which belong to the domain of civil political rights, and yet that cannot be enforced at court of law. Disputes arising relating to these resolved through political means. A case in point is article 39 of the FDRE constitution. Article 62(3) of the constitution bestowed the power of resolving issues relating to the right to self-determination to the Federal Council. Likewise the Electoral Board deals with issues related to election. This clearly shows that not all civil and political rights are enforceable at court of law.

A state party to the Covenant of Economic Social and Cultural Rights is "committed to take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measure. FDRE Constitution article 41(4) mentions “The State has the obligation to allocate ever increasing resources to provide to the public health, education and other social services”

Certainly alleviating the problem of unemployment, improving health facilities, building more schools and accessing potable water require considerable resources. The question is what if the state fails to increase budget required for health services or build more schools or is unable to devise policy or enact legislation that could pave the way for creating job opportunities? What if a government cuts the budget that should have been allocated to improve social service and divert it to procurement of weapons worth hundreds of million of dollars or squander it for an extravaganza anniversary of its advent to power and excuses “scarcity of resources” for its failure to implement ESC rights?

As long as its obligation is clearly determined in a constitution a state is duty bound to fulfill it. Its duty could be limited to devise appropriate policies, establish institutions or promulgate laws or allocate budget for the realization of particular rights.

The experiences of other countries show that courts play an important role in enforcing ESC rights. For instance, Article 35(4) of the F.D.R.E Constitution specifies that “Laws Customs and practices that oppress or cause bodily or mental harm to women are prohibited”. In order to translate this provision in to practice the state should take legislative and other measures. A court may have the power to take action for the realization of this constitutional right of women when the state fails to fulfill its constitutional commitment.

In Nepal, for instance, a human right group initiated a campaign to eliminate bonded labor. In 1992, the group published a comprehensive report on the practice in Nepal. On the basis of the report, it instituted a case in the Supreme Court seeking to have the court issue a directive to the government to enact a law prohibiting bonded labor. The court did accordingly and the government enacted a law prohibiting bonded labor. The group again sought the help of the Supreme Court, this time to ensure the effective implementation of the law by the government.

In South Africa the court was asked to adjudicate on claims to ‘roofless’ people. The court upheld the complaint on the ground that the government had not taken adequate legislative and other measures, to provide access to housing though it did not rule that it had to provide everyone with a house. One may also expect a similar ruling by Ethiopian courts for similar claims.

Although the Ethiopian government is obliged to fulfill the right to work (since unemployment is very high) the government is not expected to do away with the problem immediately by providing jobs to those who are unemployed. Courts may not oblige the government to provide every unemployed person with a job. However, they could question why the government failed to draw policies and take legislative measures aiming at alleviating the problem of unemployment in the country and give a ruling in this direction. Consequently, it would be erroneous to pre-determine the justiciability of specific rights before they have been brought to the attention of courts. The issue of Justiciability should be determined on a case-by-case basis. Courts could entertain and critically examine claims of individual victims or groups and pass judgment vis-à-vis the obligation.

We have been saying, time and again, corruption violates the whole spectrum of human rights. It introduces discrimination and arbitrariness in decision making; so the rules, regulations and procedures become unimportant. It annuls, for instance, the principle of non-discrimination and equality before the law. Article 25 of the FDRE constitution provides “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect the law shall guarantee to all persons equal and effective protection without discrimination on ground of race, nation, nationality of other social origin, color, sex, language, religion, political or other opinion, property, birth or other status." As a matter of fact the principle of non-discrimination and equality is incorporated in many of human rights provisions of FDRE Constitution. Article 40(3) of the constitution for instance says “Every Ethiopian National has the right to equal access to publicly funded social service” The question is what could a person do if he/she is denied equal access to publicly funded social services? Can he/she take the case to court to redress the violation?

The enforceability of human rights depends primarily on the states’ domestic conduct. Only effective domestic protection can ensure the observance of constitutional and internationally recognized rights. Domestic protection cannot be assured without the judiciary, which is the ultimate guarantor of rights. The issue is can a person, lodges a complaint invoking international instrument or the constitution alleging that he/she is discriminated and denied access to publicly funded social service as a result of corruption?

The Status of international human rights instruments in Ethiopian law has always been controversial. The F.D.R.E Constitution under Article 9(4) provides that international conventions ratified by Ethiopia are part of Ethiopian law. On the other hand, the Constitution mentions that federal laws or international agreements should be published in the Negarit Gazetta to be implemented at court of law. The problem in this regard is that, except for Child Right Convention , others including the Convenient on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights, the Covenant on the Elimination of All forms of Discrimination Against Women, are not published in the Negarit Gazeta. In effect, whether or not courts could invoke international instruments to adjudicate cases is still debatable. The fact that the documents are not translated in to the working language of the Federal government and other vernacular language is another problem to enforce international human rights instrument in domestic courts.

Despite this “The Ethiopian Courts are empowered by the Federal and state Executives and legislative organs to respect and enforce the fundamental rights and freedoms enshrined in the constitution.” Obviously courts are empowered to “enforce the rights and freedoms in the third chapter of the constitution…”.

Article 3(1) of Proclamation no. 25/1996 bestows jurisdiction to Federal courts over “cases arising under the constitution, federal law, and international treaties...’. Art 6 of the same proclamation “provides that the Federal Courts shall settle cases or disputes submitted to them within their jurisdiction on the basis of the Federal laws and international organization. Federal laws include the constitution”

Courts are, therefore, empowered to interpret the constitution while they are discharging “...their enforcement responsibilities. This particularly applies to cases related to the enforcement of the third chapter of the constitution.”

Despite this, however, the application of human rights treaties or human rights provisions enshrined in the constitution to specific cases at the court of law is uncommon. Apart from lack of awareness of the judges about international human rights and the constitution, the major set back seen at court of law is “lack of specific legislation to take the rights enshrined in the instruments as well as in the constitution in to effect.

The rights that are put forward in the international instruments and the Federal constitution are not fully capable of being used by individuals. Many of them are too generally stated and it would be extremely difficult to use them to specific cases before the court.”

Apart from “the generality of the provisions, a good number of them demand for further state action for them to be executable. In the sphere of civil and political rights; Art 2(2) and 2(3) of ICCPR make it clear that the realization of the rights put forth in the covenant heavily depends on the steps the state parties take. Therefore, the state parties have to work out legislation, which guarantees the remedies for violations of the rights and freedoms. The remedies are determined by competent authorities and enforced accordingly when granted. So whatever right stand freedoms are provided for in the covenant are not fully made executable.”

In order to enforce human rights in general and economic, social and cultural rights in particular some measures have to be taken by different actors. State parties are obliged to enact laws that guarantee the remedies for violations of fundamental rights and freedoms enshrined both in the international instruments and the constitution. The major responsibility falls on the shoulder of the government. The outcome of the workshop strengthens this view. The participants of the workshop clearly pointed out the necessity of promulgating detailed substantive and procedural laws to enforce human rights in courts.

The Ethiopian courts (like the courts of other countries cited else where in this writing) could also entertain claims with the available legal procedures and relevant laws. Particularly the enforceability of economic, social and cultural rights demands active, assertive and creative judiciary Last but not least we have to create active citizens capable of initiating cases and bringing them to courts. The civil society institutions has to play a proactive role not only creating human right awareness among the people but also in instituting cases on behalf of victims of human rights violations.

Source:

1. FDRE Constitution

2. Economic Human Rights: Their time has come; 2nded, 1997.

3. Problems of Implementing International Human Rights Laws by Ethiopian Courts, Getachew Assefa.

4. Circle of Rights: Economic, Social and Cultural Rights Activities, A training resource, Institute of International Education, 2000.