Reinforcing Duty Bearer Accountability for Socio-Economic Rights in Malawi: A Conceptual Alternative?

• Jurisdiction: South Africa
• Pages: 95-117
• Author: Mwiza Jo Nkhata
• Published date: 16 August 2019
• Date: 16 August 2019
• Citation: (2012) 23 Stell LR 95

95

REINFORCING DUTY BEARER

ACCOUNTABILITY FOR SOCIO-ECONOMIC

RIGHTS IN MALAWI: A CONCEPTUAL

ALTERNATIVE?

Mwiza Jo Nkhata

LLB (Hons) LLM

Lecturer, University of Malawi

Doctoral candidate, Centre for Human Rights, University of Pretoria

1 Introductory remarks

Malawi, like most African countr ies, faces ser ious governance and

development challenges. While most of these challenges are uniquely Malawian,

they are also symptomatic of a general continental tr end.1 These challenges

manifest themselves in high levels of illiteracy, prevalence of disease, povert y

and poor infrastruct ure. The multiplicity of the challenges that Malawi and,

arguably, most African countries contend with di minishes the state’s capacity

to effect ively realise huma n rights. This is often t o the detriment of rights

classied as social, economic and cultural (in this contribution short-handedly

referred to a s socio-economic rights). This is largely because it is sometimes

argued that socio-econom ic rights req uire massive expenditure outlays by the

state and t hat priority should thus be given to civil and political rig hts which

do not require such outlays.2

This contr ibution, a ccepting that the primar y duty bearer in relation to the

fullment of all human rights is the state, conducts an inquiry i nto how duty

bearer accountabi lity, especially for socio- economic rights, can be reinforced

and revitalised in Malawi. The focu s on socio-economic rights is justied

by the knowledge that socio-economic rights are centrally connected to the

citizenry’s welfare. The centrality of socio-economic rights to the welfare and

development of the people arises from this cat egory of r ights’ pre- occupation

with the creat ion of societies where everyone has a minimum standard of

living consist ent with human dignity.3 Socio-economic right s are concerned

with the provision of the basic necessities of life that are fundamental to the

1 J Hatchard, M Ndulo & P Slinn Comparative Constitutionalis m and Good Governan ce in the

Commonwealt h: An Eastern and Sou thern African Per spective (2004) 8

2 For a sum mary of the argume nts on the justiciabilit y of soc io-economic right s, see, M Ssenyonjo

“Justiciabilit y of Econom ic and Soc ial Rights in Afri ca: General Overview, Evalu ation and Prospects”

(2003) 9 EAfr Peace & Hum Rts 1; A An-Naim “To Affirm the Full Huma n Rights Standing of Econom ic,

Social and Cultura l Rights” in Y Ghai & J Cottrel l (eds) Econom ic, Social and Cultural Rights in Practice:

The Role of Judges i n Implementing Eco nomic, Social and C ultural Rights (2004) 7

3 F Viljoen “ The Justici ability of Socio-Econom ic and C ultural Rights: Exp erience an d Problems” in Y

Donders & V Volodin (eds) Hu man Rights in Education, Science a nd Culture: Legal Develop ment and

Challenges (2007) 53 53-54

(2012) 23 Stell LR 95

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attainme nt of development by a people4 a nd the achievement of social justice

and equality.5 The fu ll realisation of socio-economic rights would thus provide

“a formidable tool for alleviating poverty and marginalisation”.6 It must,

however, be conceded that the realisation of socio-economic rights alone may

not be a panacea for all the development ills of Afr ican societies.7

Having regard to the centrality of socio-economic rights to societal welfare,

this contribution contend s that it is of paramount impor tance to devise measur es

that can ensu re that the st ate, as the pr imary dut y bearer,8 effectively and

efcaciously discharges its duties with resp ect to these rights.9 While it

behoves the state to inst itut e policies and implement measures that promote

socio-economic rights, it is equally impor tant that the citizenry should

possess the means to effectively question, compel or supervise the state’s

performance of its obligations. This contribution centrally explores how the

social trust concept can be used to rein force the accou ntabil ity fr amework for

the realisation of socio-economic r ights in Malawi. In conceptualising this

accountability framework, focus is placed on the role and duties of public

functionar ies. The focus on public functionaries is ju stied on the basis that

even though the state is the primary dut y bearer (it may be a rgued that the

state is the ultimat e duty bearer and not necessarily the pr imary duty bearer),

the state acts through public func tionaries. Only by properly regulati ng

public functiona ries, therefore, can the state be effectively regulate d in turn.

Enhanced account ability on the part of public functionaries is bound to result

in enhanced ac countability on the part of the state genera lly.

2 Development and socio-econom ic rights in Malawi:

A brief prole

Malawi r emains one of the poorest countries i n the world.10 In 1993, the

United Nations Development P rogramme (“UNDP”) concluded that poverty

4 “Development” as used in this st udy connotes a comprehen sive process of enlarging people s’ choices and

capabilitie s, see United Nations Developme nt Program me (UNDP) Hu man Developm ent Report (20 02)

15-18

5 N Udombana “Interpreti ng Rights Globally: Courts and Const itutional Rights in Emergi ng Democracies”

(2005) 5 AHR LJ 47 52 Socio-econo mic rig hts c reate e ntitlements to material conditions for human

welfare – D Brand “Introduct ion to Socio-Econo mic Rig hts in the South A frican Constitutio n” in D

Brand & C Heyns (eds) Soc io-Economic Righ ts in South Africa (20 05) 1 3

6 C Mbaz ira “ Bolstering the Protection of Economic, Social and Cultural Rights under the Malawian

Constitut ion” (2007) 1 Malawi LJ 224 225

7 The constitu tional protec tion of socio -economic r ights may not be enough for a count ry’s development

but it is a stateme nt of a country’s commit ment to the realisa tion of these rights

8 The domin ant role of the state domestically entails that the stat e bears the primary responsibi lity for

human right s See F Viljoen Intern ational Human Right s Law in Africa (2007) 9

9 This is not to suggest that private acto rs do not bear any responsibilit y for the protection and promotion of

socio-econ omic rights See D Chirwa Towards Binding Economic, Social and Cultu ral Rights Obligations

of Non-State Actors in Interna tional and Domestic Law: A Critical Sur vey of Emerging Norms LLD thesis

UWC (200 5) 74557113pd f> (acce ssed

29-05-2010)

10 Advameg I nc “Malawi – Poverty and Wealth” (2012) En cyclopedia o f the Nation s

nationsencyclo pedia com/econo mies/Africa/ Malawi-POVERTY-AND-WEA LTH html> (accessed

23-02-2010) As to the dominant causes of poverty, see D Acemoglu “Root Causes: A Historical Appr oach

to Asse ssing the Role of I nstitutions in Econ omic Developmen t” (2003) 40 Finance and Devel opment

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