Litigating Economic and Social Rights in Africa

This volume, which is the second in Africa Legal Aid's (AFLA's) Special Book Series, contains written versions of various presentations delivered during a Conference on Litigating Economic and Social Rights in Africa that AFLA organized in Accra in 1999. For a long time economic and social rights have been overshadowed by civil and political rights, even in human rights circles. The number of publications on the latter category of rights far exceeds those on economic and social rights and non-governmental organization all too often tend to focus almost exclusively on civil and political rights. The uniformed observer might be tempted to conclude that the under-representation of economic and social rights in the work of lawyers flows from a belief or view that these rights are, for one reason or another, less important than civil and political rights. This, however, is not the case. It is now widely recognize that "all human rights are universal, indivisible and interdependent and interrelated" and that there is no ranking order between the two categories of rights mentioned. The reasons that explain why lawyers tend to shy away from economic and social rights issues are quite different in nature. They have to do with definition and conceptualization, as well as the question who should be made responsible for the enforcement of rights. Civil and political rights can be quite easily defined. Having their origins in natural law, civil and political rights are presumed to exist; they do not have to be realized. The sole obligation imposed on States or governments is a negative one, i.e., they should not obstruct the enjoyment of these rights by individuals. The enforcement of civil and political rights is, as a rule, entrusted to courts or semi-judicial bodies empowered to review complaints from individuals, whose main task it is to determine whether the protective limits of these rights have been crossed. Economic and social rights are much more elusive and are often defined in rather broad terms. They imply obligations for States to achieve a certain economic or social objective. Economic and social rights do need to be realized; their precise substance depends to some ill-defined degree on the specific decisions that policy makers make and the financial means they have at their disposal or are willing to use. Much more than civil and political rights, economic and social rights are seen as matters for policy makers rather than lawyers, which largely suggests that these rights are enforced through (semi-) political channels rather than judicial channels.