Sub-regional and constitutional protection of socio-economic rights : SADC, Botswana, Lesotho, Malawi, Namibia and Zimbabwe

• Published date: 01 January 2011
• Date: 01 January 2011
• Author: Admark Moyo
• DOI: 10.10520/EJC123680
• Pages: 75-90

SUB-REGIONAL AND CONSTITUTIONAL

PROTECTION OF SOCIO-ECONOMIC

RIGHTS: SADC, BOTSWANA, LESOTHO,

MALAWI, NAMIBIA AND ZIMBABWE

Admark Moyo*

ABSTRACT

A survey of five domestic constitutions in Southern Africa shows that only

the Malawian and Namibian Constitutions recognise some socio-economic

rights as justiciable rights. The Constitution of Lesotho recognises socio-eco-

nomic rights as principles of state policy. Zimbabwe and Botswana provide

classic examples of countries in which socio-economic rights have been rele-

gated to the margins of legal protection. Save for the right to own property,

no other socio-economic rights are protected in these countries’ Constitu-

tions. However, in all these countries, the courts have demonstrated some

resolve and innovativeness in interpreting some civil and political rights in

order to protect certain socio-economic interests, such as by holding that the

right not be subjected to torture or inhuman or degrading punishment or

treatment includes a duty on the state to provide access to basic amenities of

life. Such decisions offer some hope for the judicial enforcement of socio-eco-

nomic rights, and for these states to fulfil the promises they have made at the

sub-regional level.

I INTRODUCTION

This article examines the legal protection and judicial enforcement of

socio-economic rights at the sub-regional and national levels. Firstly, it ex-

plores the legal protection of socio-economic rights at the sub-regional level,

PROTECTION OF SOCIO ECONOMIC RIGHTS 75

Lecturer in Law, Midlands State University, Zimbabwe; LLB Hons (Fort Hare), LLM Doctoral

Candidate (UCT); admarkm@gmail.com. I am indebted to the anonymous reviewers of the Ma

lawi Law Journal for their scholarly and detailed comments on the first draft of this article. I wish

to thank the Chief Editor of the Journal, Professor DM Chirwa, for committing extra effort to

wards ensuring that the article complies with the guidelines to contributors.

*

analysing the provisions of the relevant instruments. It will be shown that the

Southern African Development Community (SADC) Charter on Fundamen-

tal Social Rights, read with all the international instruments it imports into the

SADC framework, binds states parties to take positive steps to improve the

quality of lives of the people of the sub-region. Secondly, it investigates

whether the constitutions of five SADC countries (Lesotho, Namibia, Malawi,

Zimbabwe and Botswana) and the jurisprudence generated by local courts re-

cognise socio-economic rights as justiciable rights and are consistent with the

promises made by these states at the sub-regional level. Due to space con-

straints, it is not possible to examine all measures that seek to promote the

realisation of all socio-economic rights at the national level. Thus, this article

does not discuss the legislative and policy measures that the countries under

study have adopted.

II THE PROTECTION OF SOCIO-ECONOMIC RIGHTS IN SADC

The founding Treaty of the SADC does not entrench individual rights

and civil liberties. However, article 5 of this treaty spells out the objectives of

SADC, which include an undertaking by states parties to combat HIV/AIDS or

other communicable diseases and to promote sustainable socio-economic de-

velopment that will ensure poverty alleviation, enhance the standard and

quality of life of people, and support the socially disadvantaged through re-

gional integration.1While these and other objectives do not create directly

enforceable legal obligations, they entrench the aspirational goals that all

member states must strive to achieve. According to article 6(1), ‘Member

States undertake to adopt adequate measures to promote the achievement of

the objectives of SADC, and shall refrain from taking any measure likely to

jeopardise the sustenance of its principles, the achievement of its objectives

and the implementation of the provisionsofthisTreaty’.Clearly,member

states bear not only the positive obligation to promote the achievement of the

objectives of SADC, but also the negative obligation to refrain from taking any

measure that may endanger the achievement of these objectives.

Article 4(c) of the SADC Treaty requires member states to act in accor-

dance with, among others, the principles of ‘human rights, democracy and the

rule of law’. In Mike Campbell (PVT) Limited & Others v Republic of Zimbabwe

(Campbell), the SADC Tribunal held that this article empowers it to determine

1Article 5(1)(a) and (i) of the SADC Treaty.