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Constitutional Review Committee should consider the justiciability of non-justiciable rights that are enshrined in Chapter Two of our 1991 Constitution

Constitutional Review Committee should consider the justiciability of non-justiciable rights that are enshrined in Chapter Two of our 1991 Constitution

Shortly after “inheriting” political power from his benefactor, Joseph Saidu Momoh declared categorically that education ‘is a privilege and not a right.’ While at that time the man on the street, the layman, protested vehemently, the legal gurus of President J.S Momoh were wallowing in the ignorance of the citizens. They knew that J.S Momoh was legally right to say so. They knew that he was not arrogating. They understood that what he said was not rhetoric.  (Photo: Mohamed Kunowah Kiellow, author)

The reason being that there was no provision in the 1978 Constitution (this constitution established the one-party system in fact and in law) that proscribed that citizens had economic, social and cultural rights. All economic and social developments that took place during the reign of Pa Sheki were a mere favour. He might have thought that he only had the moral duty to provide those amenities, and not the constitutional duty. This means that no one had right to a decent standard of living in Sierra Leone. We, therefore, had no constitutional right to affordable health services, food, adequate housing, good roads, employment rights and education.  Thus, J. S Momoh was right when he said that education was a privilege and not a right.

However, smelling that the threat of civil war in Sierra Leone was imminent, J.S Momoh installed a committee that would cater for a constitutional overhaul, a constitution that would usher in multi-party system. It was a constitution that would protect political and civil rights and guarantee social, economic and cultural rights. He was fully aware that the imminent war was as a result of the discrepancies in the social and economic lives of the populace. In October 1991, the new constitution came into effect. This constitution made provisions for economic, social and cultural “rights” that do not confer any rights on the people of Sierra Leone. In this article I will put forward arguments in favour of giving these ‘rights’ their due rights.

At the outset of human rights movement, much accent was placed on the distinction between so-called ‘negative rights’ and ‘positive’ rights. The negative rights basically impose a duty of ‘hands-off,’ a duty of a state’s non-interference with, say, an individual’s freedom of speech right. These rights are also called “classical rights.” Today these negative rights are termed as civil and political rights. Positive rights, on the other hand, impose affirmative (positive) duties on the state in order to satisfy these rights. Therefore, economic and social rights such as the right to adequate housing are considered positive rights, which require ‘allocation of finances and resources and policy decisions by legislative and executive bodies.’

The Universal Declaration of Human Rights has provisions that enunciate both the negative and positive rights. On December 16, 1966, the United Nations completed the drafting of two treaties ‘designed to transform the principles of UDHR into binding, detailed rules of law: the International Convention on Civil and Political Rights, and the International Convention on Economic, Social and cultural Rights.’ These Covenants came into effect in 1976. The International Convention on Political Rights and Civil Rights contain the negative rights, whilst the International Convention on Economic, Social and Cultural Rights houses the positive rights. It is however noteworthy that the ICESCR ‘are not as directly binding obligations as ICCPR, but instead describe in terms of a program depending on the goodwill of and resources of the state’. Article two of this Convention states that each state party undertakes steps to the maximum of its available resources ‘with a view to achieving progressively the full realization of the rights recognized in the present Covenant.’ This makes the legal obligation very weak in terms of remedial mechanisms. Notwithstanding, the United Nations adopted an Optional Protocol to the ICESCR on December 10, 2008,  the day of the 60th Anniversary of the UDHR. The adoption of the Optional Protocol took place 42 years after a similar mechanism came into being for ICCPR. This Protocol gives locus standi to individuals who suffer violations of their ESC-rights to seek effective remedy -on the international plane- that is denied them in national courts.

The 1991 Constitution that replaced the single-party Constitution of 1978 contains positive “rights” and are “impliedly” provided for in Chapter two under the title Fundamental Principles of State Policy,” whilst the negative rights are enshrined in Chapter three under the title: “THE RECOGNITION AND PROTECTION OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS OF THE INDIVIDUAL.

Section 28(1) of the constitution provides for a legal remedy to a person who alleges that his rights in this chapter, has been, is being or is likely to be contravened. Conversely, however, section 14 of the constitution declares the rights in chapter two non-justiciable. It states thus: “Notwithstanding the provisions of Section 4, the provisions contained in this Chapter shall not confer legal rights and shall not be enforceable in any court of law, but the principles contained therein shall nevertheless be fundamental in the governance of the State, and it shall be the duty of Parliament to apply these principles in making laws.” When we compare the 1978 Constitution with that of 1991, we are faced with the indisputable fact that there is not much a difference between them as far as economic and social rights are concerned. The 1978 Constitution made no provisions for these ‘implied rights’ called principles of state policy, while 1991 Constitution provides for these ‘rights’ but renders them ineffective by making them non-justiciable. So, if there is a systematic violation of the internationally recognized right to education or to affordable health care, the government can never be held responsible because it is not legally bound to provide these services. It is in the light of this that many legal scholars and state authorities in Sierra Leone continue to relentlessly feed the ‘myth that economic, social and cultural rights are merely inspirational and are somehow not legally enforceable.’

Arguably, however, the notion that these rights are merely inspirational, and therefore should not be accorded the same weight as civil and political rights with regard to seeking redress has however changed in recent time. In many national courts, international judicial and quasi judicial instances these rights are now enforceable. Many countries around the globe have not only incorporated ESC rights within their ‘constitutional frameworks, but expressly allowed for the possibility of access to judicial remedies for violations of these rights.’

Besides, a little more than a decade ago, the international community reaffirmed in the Vienna Declaration on human rights that “all human rights are universal, indivisible and interdependent and interrelated.” The inter­national community was cognizant of the fact that it must treat human rights “in a fair and equal manner, on the same footing, and with the same emphasis.” Undoubtedly, these principles are grounded ‘in the understand­ing that all human rights are vital to living a life with dignity, and no human right can be seen as super­fluous or unnecessary’.  It is against this background that the TRC report recommended that the fundamental principles stated in Chapter two of the Constitution be enshrined as Human Dignity which will confer legal rights on the citizens. This sends a sharp message that deprivation, poverty, inaccessible health, education and welfare systems and immense human suffering remain sadly a commonplace because States, including Sierra Leone, have continued to relegate economic, social and cultural rights to the backyard of human rights.

Further, many judiciaries in the world have established a growing willingness to imply ESC rights from other human rights. These are countries whose constitutions contain a series of ‘directive principles’ that correspond to ESC rights. These principles are often phrased as policy goals and made non-justiciable.. However, the principles have often been used as interpretive tools to ensure that laws and decisions are consistent.

The Constitutional Court of the Swiss Confederation has, for example, held that ‘rights to democracy and liberty are meaningless without recognition of a right to a basic minimum level of sub­sistence, a right to basic necessities’ In like manner, Justice Walsh of the Supreme Court of the Republic of Ireland in G v. An Bord Uchtála, observed that “[t]he child also has natural rights. … [t]he child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realizing his/her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State”.

Moreover, the Indian courts have become very famous for implying the ESC rights by reading the rights to life and equality together with the Directive Principles (which contain policy objectives in the social and economic domains, and are equal to the provisions in Chapter Two of the 1991 Constitution of Sierra Leone). The Supreme Court of India stated:

The fundamental right to life which is the most precious human right … must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may … enhance the dignity of the individual and the worth of the human person. We think that the right to life includes [the] right to live, with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about, mixing and co-mingling with fellow human beings.’

In addition, Article 8 of the UDHR provides that “[e]veryone has the right to an effective remedy by the competent national tribu­nals for acts violating the fundamental rights granted him by the constitution or by law.” Yet, victims of violations of economic, social and cultural rights have been accorded few possibilities to seek redress at either the national or the international level. Litigation has also been hindered by the lack of awareness about eco­nomic, social and cultural rights among judges, lawyers, advocacy organizations and victims.  Despite the weak nature of the ICESCR, the United Nations has reiterated that victims of violations of ESC rights must have recourse to legal remedies. It noted that appropriate means to implement the Covenant include legal methods. Nonetheless, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) has commented that the rights are capable of judicial application and that States should justify why such methods are not used to further the implementation of the Covenant. It has also called on countries to make the rights domestically applicable and justiciable at the national level:

‘[W]hile the Covenant does not formally oblige States to incorporate its provisions in domestic law, such an approach is desirable. Direct incorporation avoids problems that might arise in the translation of treaty obligations into national law, and provides a basis for the direct invocation of the Covenant rights by individuals in national courts. For these reasons, the Committee strongly encourages formal adoption or incorporation of the Covenant in national law’.

For the sake of the economic, social and cultural development of the people of Sierra Leone, these ‘implied rights’ enshrined in the constitution of Sierra Leone should be treated equally as civil and political rights. Human rights come ‘with obligations, and when those rights and obli­gations are violated, the victims are due remedies and the perpetrators should be held accountable’. Despite the fact that economic, social and cultural rights are enshrined in one of the human fundamental rights documents, this outdated idea of human rights is being cherished by a lot of countries, including Sierra Leone.  If the Government of Ernest Bai Koroma greatly sets its heart on improving the lives of Sierra Leoneans and means what has become known as ‘attitudinal change’ in the parlance of the average Sierra Leonean, it is arguably right to say that  economic and social rights, whether implied or not, should be weighted seriously.

In the first place, the legislative organ should use her constitutional power to enact laws that will protect the social and economic rights of the populace of Sierra Leone. Article 107 subsection 1 of the 1991 constitution accords the right to a minister to initiate a bill in parliament. The social and economic situation of sierra Leonean is declining every day. However, much heed is not being paid to the desperate position in which majority of Sierra Leoneans find themselves. The ministers who are therefore heading ministries that are important  to social and economic rights should make use of their powers to introduce laws that will improve our social and economic lives. They should actively participate in entrenching the International Convention on Economic, Social and Cultural Rights and its optional Protocol into the constitution that is currently under review.

Lastly, the judiciary should, even in the absence of an entrenchment of these rights into national law, follow the examples set by other judiciaries by using the principles in chapter two of the Constitution as interpretive tools to ensure that laws and decisions are consistent.

There will be no meaningful human development if much importance is not attached to the improvement of social and economic rights of the people of Sierra Leone. Everybody should have right to a decent life in Sierra Leone. A decent life should not only be meant for directors, managers, Permanent Secretaries, ministers, the president and his V.P. Everybody should enjoy it. If the boss of, for example, NRA has right to a decent life that the average Sierra Leone does not have, then it is to my mind  very unconstitutional, arbitrary and against one of  the major principles that make a state democratic. Against rule of law! The Constitutional Review Committee should therefore use its power with which it is vested to give justiciability to non-justiciciable rights enshrined in chapter two of the 1991 constitution.

By Mohamed Kunowah Kiellow, United Kingdom.

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