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Prof. Nico Horn
5/18/2011 _________________________________

............................ ................................. .................................................................................. ........................................ Economic.......................... .................... 8 a) b) Expensive Interpretation ................................................... .................................. ......... ...................................................................... .................................................. ........... 11 Cases ................................................. ................................................................................................ 6 Lack of constitutional entrenchment: The need to adopt innovate approaches in order to solve Mrs XYZ s problem........ .................. Social and Cultural Rights . ........................... ..... ... 4 The right to health ........................ 4 Civil and Political Rights vs................... 9 Advice to Mrs..................................... 8 International law.......... ............................................ ............Contents Introduction ....... . ................................................. ................................................... ...... ...................... ................... 4 Legal issues....................................... ..... ................................................................ XYZ .... ................... 11 ....... ................................................................ ................... ... 11 Books.... ... 9 Referencing: ................. ................................. ............... .... ......... ............ ........................... ........................... ....

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civil and political rights have been broadly enforced while economic and social rights have often been given little more than aspirational lip service. As can be inferred in the bigoted words of the previous legal practitioner. Since that point. Even in Article 95 of the constitution. Wh ile there is some reluctance by common law countries to recognize the existence of ESC rights as fundamental or constitutional . the duty to provide housing). Steiner et al. and in my opinion the most important. socio-economic rights . However. the prohibition on torture) while economic. welfare rights or welfare benefits .. social and cultural rights impose positive obligations (e. and if she does the bases these rights stand on. there has been considerably less attention placed on the need to develop the content of ESC rights and protection mechanisms to enforce them . XYZ has any recourse in the law to remedy the alleged violation of her rights. Yet. the right to health is not guaranteed by our constitution in terms of Art 101. like in Namibia. it is of extreme importance to identify legal issues in relation to the problems she is encountering. and because this is the term generally accepted in the field of international human rights law. 2 One needs to page through government policies to find economic and social rights. with a few exceptions. Legal issues Before any attempt is made to advice Ms XYZ. such as social rights . fundamental social rights . Social and Cultural Rights Civil and political rights have been characterized as imposing negative obligations on states (e. second-generation or social and economic rights are not included in the Bill of Rights. other terms are more frequently used. The first issue that is encountered is whether Mrs. is whether Mrs.Introduction The International Commission of Jurists (ICJ) has consistently recognized and advocated that economic. social and cultural rights (ESC rights)1 should be taken as seriously as civil and political rights. 2 As opposed to South Africa which has a Bill of Rights that encompasses both these kinds of rights 3 1 Henry J. Whether the distinction between the groups of rights is appropriate has been vigorously debated. ESC rights have been part of the language of international human rights since at least the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. social and cultural rights ( ESC rights ) as this is how such rights are called in the International Covenant on Economic. In some constitutional traditions. This specific clause in our constitution makes it very difficult for the above issues to be legally addressed. The Constitution of the Republic of Namibia has an entren ched Bill of Rights. Social and Cultural Rights (ICESCR) and other universal human rights instruments. 3 But during the modern human rights era.g.g. XYZ has any legal right that is or might be violated by the State. compared to civil and political rights. The second issue. the fact is that some of these rights are already enshrined in statutes and sometimes in national constitutions. was recognized shortly after World War II. International Human Rights in Context 263 (3d ed. as they have with We use the term economic. 2008) . human rights systems have struggled. important social and economic rights like the right to health are given to us and then later taken away by Art 101. The right to health. Economic. Civil and Political Rights vs. quintessential among the economic and social rights.

para. 4 Courts from have been confronted with arguments regarding the separation of powers. even when a court enforces civil and political rights such as equality. In particular the objectors argued it would result in the courts dictating to the government how the budget should be allocated. Countries around the world have signed on to conventions protecting economic and social rights in addition to conventions protecting civil and political rights. Case CCT 23/96.´5 There are other objections to the involvement of the judiciary in the implementation of ESC rights. It is true that the inclusion of socio-economic rights may result in courts making orders which have direct implications for budgetary matters. A court may require the provision of legal aid. Today. every country in the world is party to at least one treaty that explicitly protects the right to health .other rights imposing positive obligations. Social and Cultural rights have failed to be properly implemented by different governments. 1996. to find a workable standard for enforcing the right to health. According to this line of reasoning. the order it makes will often have such implications. September 6. while civil and political rights are Former State Advocate Sandra Miller agrees in this regard (personal interview) Constitutional Court of South Africa. Certification of the Constitution of the Republic of South Africa. or the extension of state benefits to a class of people who formerly were not beneficiaries of such benefits. The Cour t said: ³The second objection was that the inclusion of these rights in the [Constitution] is inconsistent with the separation of powers [«] because the judiciary would have to encroach upon the proper terrain of the legislature and executive. There are myriapods of reasons why such Economic. Definitional ambiguity and the problem of limited governmental resources have led to murky treaty provisions often considered merely aspirational. In our view it cannot be said that by including socio-economic rights within a bill of rights. challenging their ability to adjudicate on ESC rights. The doctrine of Separation of Powers and the excuse of there are not enough resources are the main reasons i feel alot of governments use to escape responsibility. but with inadequate enforcement mechanisms (namely the lack of individual complaint procedures) the right to health remains the prototypical example of the failure of economic and social human rights to achieve their purpose. allegedly breaching the principle of the separation of powers. in contrast to civil and political rights. Such objections are sometimes taken as proof that ESC rights are distinct in nature. Judicial interference with decision-making and budgetary allocations in the field of social policies could be seen as raising issues of concern from a democratic standpoint. a task is conferred upon the courts so different from that ordinarily conferred upon them by a bill of rights that it results in a breach of the separation of powers. freedom of speech and the right to a fair trial. ³However. The Constitutional Court of South Africa confronted a challenge to the inclusion of ESC rights in the South African constitution. 77 5 4 .

nearly 70% of countries have some form of explicit guarantee regarding health. Thus. Civil and political rights may also require the adoption of legislation or regulations. the organisation of elections and voting scrutiny are all examples of expensive measures that need to be taken to ensure compliance with civil and political rights. However. the granting of media space. A whole area of delict and administrative law focuses on State liability. with some (albeit limited) financial implications. working time by advisors. Arguably the most widely known case to be decided by the South African Constitutional Court to date. the fact that adjudication has budgetary impacts has never been seen as a reason to deny the enforceability of civil and political rights. Namibia does not explicitly guarantee the right to health. civil and political rights are neither particularly cheap nor costless. The right to health Since Chile provided the first constitutional recognition of the right to health in 1925. Breaches of civil and political rights lead to financial compensation. adjudication on the basis of ESC rights would result in wholesale policy-making and significant expenditure. but also because of the successful campaign surrounding it (a frequently critical factor in ensuring enforcement). regulators. time consuming consultations. which again requires budgetary allocations. which is not free of charge (it involves legal advice. is Minister of Health v. where it was held that the state s failure to provide comprehensive anti-retroviral drugs to prevent mother-child HIV transmission breached their right to health. essentially substituting the judiciary for democratically elected authorities. although this may take a variety of forms. but it can be inferred from the State policies that it indirectly aims at addressing the issue of health. Such legislation and regulations need further implementation. or the TAC case.cheap or costless rights. legislators. in a world of scarce resources. An important factor for the court was the fact that the drug was costless to the government and therefore arguments centred on lack of resources did not carry any weight. but to any right. A number of points in this argument need clarification. by requiring that the programme should include reasonable measures for counselling and testing. All decisions with budgetary outcomes imply. which by definition involves budgetary resources. 6 (TAC) (2002) 5 SA 721 (CC) . prioritization so this argument not only applies to ESC rights. Treatment Action Campaign 6. due not just to the issues involved. Decisions regarding civil and political rights also have costs (sometimes hefty costs). the court did make orders. and the same argument sh ould be made about ESC rights. Political rights are translated into costly entitlements: the recognition and inscription of political parties and candidates. First. etcetera). which is regularly assessed and adjudicated by courts and tribunals all over the world.

777/96 (1998) 8 . (the facts were similar to the current scenario) the Constitutional Court set out its approach to examining right to health claims within the context of limited resources. Expediente No. held that the health authority had acted reasonably and applied its guidelines rationally and fairly. has been Latin America.5 million people. A region where the courts have been extremely proactive in addressing systemic violations. 15. affecting thousands of victims.g. para. rather than a progressive realization approach. 486.In Soobramoney v. and had been able to vaccinate 140 000 people between 1991 -1995. Grootboom 2000 (11) BCLR 1169 (CC). instead. Indeed in Soobramoney the court was very explicit about the large margin of discretion it would give to the state to set budgetary priorities stating that the court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities. most of whom did not have adequate access to preventive medical services in certain affected areas. In so doing the court (as it has done in subsequent cases) asked the crucial question: Has the state done all it could reasonably do in the circumstances?8 By adopting this approach. One of the leading decisions is Mariela Viceconte v. freedom and equality.789. Argentina 12. A judicial writ of amparo was filed requiring the health ministry to manufacture and 7 1997 (12) BCLR 1696 See the landmark decision of Government of RSA v. frequently responding to actions. Peru 10. but is. and requiring states to take concrete and immediate action. although extending beyond the decision . a human rights approach to health care. The court. it was unable to carry out a massive immunization campaign due to the lack of an adequate quantity of vaccine. similar to judicial review. have handed down landmark decisions guaranteeing access to medicines and/or treatment. 9 Justice Sachs went further. Whilst the state had been able to obtain 200 000 doses of a vaccine from the United States. Ministry of Public Health Resolution No. MSAS s/amparo. even where there are significant resource implications for their decisions. Minister of Health KwaZulu Natal 7. stating that: In open and democratic societies based upon dignity. there to act as an impartial arbiter. 9 Soobramoney. 10 Azanca Alhelí Meza García. In a number of decisions from different jurisdictions e.816-11 14 Mendoza & Ors v. 2945. then threatening the lives of 3. rather than incompatible with. in considering a terminally ill patient s claim to access medical services to obtain costly dialysis treatment. the rationing of access to life prolonging resources is regarded as integral to. Brazil13 and Ecuador14 courts. Venezuela11. 0749-2003-RA (28 Jan 2004) 15 Case No 31. Sentencia N° 196: 12 Menores Comunidad Paynemil s/acción de amparo (2/03/1999): 13 Estado do Rio de Janeiro AgR No. which had been refused by the local health authority on the grounds of lack of resources. Ministry of Health and Social Welfare 15 from Argentina in 1998.making process to consider all the actions taken. the court has recognized that it is not in a position to assume the role of the state in making decisions about resource allocation. 29.2003-AA/TC: 11 Cruz del Valle Bermúdez y otros v. The claim was brought by a number of community groups to ensure that the state would manufacture a vaccine against Argentine hemorrhagic fever. Expediente No.

In the public interest litigation case of Paschim Banag Khet Samity v. In S v Acheson 16 it was held that. 1991 NR 1 HC. It is a mirror reflecting the national soul. concluding that such an essential obligation could not be avoided by pleading financial constraints. Further on in the case of Minister of Defence v Mwandingi 17 Constitution should not be interpreted so as to ascribe to a narrow and pedantic meaning to words used therein in interpreting it . the courts must also take into account the norms and aspirations of the Namibian people 18.23In Namibia. human dignity a nd all that goes with it as it was correctly pointed out in the Indian Francis Corallie Mullin case19. the Namibian Constitution is not simply a statute mechanically defining structures of the Government and relations between government and the governed. identifying ideals and aspirations of the n ations. However. this does not mean that these unremunerated rights cannot be granted. 1993 NR 63 (SC). Significantly (and unlike in South Africa) the court also set a legally binding deadline for the obligation to be met. The Indian judiciary has. Techniques include: a) Finding a link between the right to health which is not guaranteed with domestic national laws that are entrenched in our constitution. 18 Ex parte Attorney General In Re: The Constitutional Relationship between the Attorney General and the Prosecutor General 1998 NR 35 (SC). However. Lack of constitutional entrenchment: The need to adopt innovate approaches in order to solve Mrs XYZ s problem The lack of express constitutional protection for health rights presents courts with significant but not insurmountable challenges for enforcement. including litigation. 19 Both Namibian and Indian Constitutions have differentiated between ESC rights and Civil and Political Rights. The spirit and tenor of the constitution must preside over and permeate process of judicial interpretation and discretion. This approach has however been treated differently in these two countries. with regard to the above case. establishing the state s obligation to manufacture the vaccine. Following initial rejection. the Court of Appeals ruled favourably. State of West Bengal 20 (India) the Supreme Court used the right to life to secure the right to emergency medical care. (expensive interpretation) b) Taking advantage of Namibia s approach to international law a) Expensive Interpretation The right to health can be linked with the right to life. it required further action by the groups. as in the South African TAC case. 20 (1996) 4 SCC 37 17 16 .distribute further supplies of the vaccine to persons living in the affected areas. the same can be said with regards to the right to health. This involves the indirect protection of ESC rights through Civil and Political rights. to secure enforcement.

like in the position of Ms XYZ must have locus standi 23. to organize trade unions. is often referred to as the International Bill of Rights. social and cultural rights protects fo r example. can be one of the strategies to employ in order to achieve social justices in Namibia. Article 25 (2) is an enforcement provision of the Namibian Constitution. to reasonable condition of employment. in Kauesa v Minister of Home Affairs and Other22. In other words. Namibia on the other hand refuses to accept and implement this way of interpretation and we can thus conclude that it will be very hard in bringing a claim against the government using this approach.e. Advice to Mrs. that anyone or any person who is aggrieved by a violation of human rights guaranteed by the constitution may seek redress from a competent court. 23 Parker. has was held in the 21 As John Nakuta points out (2009:97) 1995 NR 175 (SC). to protection of family and children. Article 144 thus potentially opens the doors for Namibian citizens to appreciate the importance of the world beyond their own country in the definition and enforcement of human rights 21. it is regarded as the principal legal source of ESC rights. Hence the reason why. After Namibia has ratified the ICESCR. education and etc. social and cultural rights. This will be interpreted to mean. For example. In Namibia th e ICESCR can be either directly or indirectly enforced by virtue of A rticle 144 of the Constitution. Social and Cultural Right. A pplying Article 144 to the ICESCR therefore means that the Covenant as ratified by parliament became part of the corpus of law in Namibia on date it entered into force for Namibia on the 28 th of February 1995.. to health. as well as economic. specifically ESC rights. a person has locus standi. Social and Cultural Rights are sine qua non for improving people s lives and standard of living human rights. together with the International Covenant on Civil and Political Rights and the International Covent on Economic. 2000: 208 22 . the right to work. the Declaration and the two covenants contains the basic human rights in all the various areas in which human apply i. The Economic. if he or she has a direct and substantial interest in the right which is the subject matter of litigation and in the outcome of litigation. civil and political. The international covenants on economic. had to be given affect in Namibia. b) International law The Universal Declaration of Human Rights.through creative interpretation pioneered a process of interpreting Civil and Political rights a way that will encompass ESC rights. XYZ It is a common fact among all national constitutions of the common wealth countries. A person whose right is violated. the court held that the African Charter on Human and Peoples Rights had become binding on Namibia and formed party of the law of Namibia and therefore.

In corporation with the United Nations. clothing. undividable and for all human beings. ideals and aspirations of the people at a given time wer e. land and a safe environment. to every person human rights in particular.case of National Union of Mineworkers v Free State Consolidated GM (OPS) Ltd . medical care and his necessary social services. without any distinctions whatsoever. widowhood. according to Perez 27. economic and social conditions in which p ersons all over the world can live a life worthy of a human being 25. 2009: 91 27 (2001: 66) 25 24 . In the Namunjepo case. housin g. a court interpreting a Constitution will give such words especially those expressing fundamental rights and freedoms. This universal rights. the widest possible meaning so as to protect the greatest number of rights. it was held that. education. the court was not free from certain constraints.24Ms XYZ is herself personally affected by the legislative and administrative acts of those who were suppose to ensure her well being and proper health and thus qualifies for the redress she wants to seek. freedom of association. food. Her human rights can thus be enforced to create the legal. 1989 1 SA 409. sickness. This approach can be expressed in inter alia Article 25 of the 1948 UDHR that states everyone has a right to a standard of living adequate for health and wellbeing of himself and his family. Treating ESC entitlements as mere political programmes undermines the fundamental principles that human rights are inalienable 26. and the right to security in the event of unemployment. Human rights reveal an integral concept of human life: all are important. a decent life. in determining what the contemporary norms. participation. sensitivities. there is a great need for the government to prioritize and allocate money to issues that are of vital importance and at the forefront of the nations need. is entitled to all these rights mentioned above. Seeing as the social and economic rights are implemented subject to the availability of resources. Ms XYZ too. including food. Ms XYZ clearly qualifies to be treated as such. the words used in the constitution had the usual and grammatical meanings which could not be totally ignored. health. 26 John Nakuta. Our government should put the money where the need is. housing. equality. work. disability. Fundamental needs should not be at the mercy of governmental policies and programmes but should be defined as entitlements. old age or other lack of livelihood in circumstances beyond control. this universal rights proclaims that everyone has the right to liberty. Firstly. UN member States of which Namibia is a part have pledged themselves to achieve the promotion of universal respect for and observance of human rights.

(2009) Water.C. O. 7. Perez-Bustillo. Social and Cul tural Rights. Naldi. 5. Horn.(2009). Ruppel. C. London: Zed Books. (2009) The justiciability of social .940 b) Ex parte Attorney General In Re: The Constitutional Relationship between the Attorney General and the Prosecutor General 1998 NR 35 (SC) c) Kauesa v Minister of Home Affairs and Others 1995 NR 175 (SC) d) Minister of Defence v Mwandingi 1993 NR 63 (SC) e) Namunjepo and Others v Commanding Officer. Cases a) Brugdacy v Secretary of the State 1987 (1) ALL E. Monday 07 August. Horn and A. Windhoek: Macmillan Namibia. J. Tjiramba. in N. 6. 3.C.C. Goldewijk. Windhoek. Carbonari. 2. and cultural rights in Namibia and the role of the non -governmental organizations in N. B. (2002) Human Rights Law. Horn and A. A. and Genugten. C. Bosl (eds . economic . Nakuta.K. N.) Human Rights and the Rule of Law in Namibia. Leicestershire: Upfront Publishing. Bosl (eds. KwaZulu-Natal 1997 (12) BCLR 1696 (CC ) . (2001) The Poverty of Rights: Human Rights and Eradication of Poverty. S. Windhoek Prison and Another 1999 NR 271 (SC) f) National Union of Mineworkers v Free State Consolidated GM (OPS) Ltd 1989 (1) SA 409 g) S v Acheson 1991 NR 1 (HC) h) Soobramoney v Minister of Health. Parker. (1995) Constitutional Rights in Namibia . Baspineiro. International human rights norms and standards: The development of Namibian case and statutory law . Kenwyn: Juta and Co Ltd. (2009) Human Rights Compendium for Law students .R. W. P. fundamental human right or a commodity ?. Windhoek: University of Namibia 9.) Human Rights and the Rule of Law in Namibia. The Namibian.Referencing: Books 1. 8.(2000). (2002) Dignity and Human Rights: Implementation of Economic. G. 4. Namibian Police Human Rights Manual . Legal Assistance Centre. Windhoek: Macmillan Namibia.

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