The Indirect Approach to Promote Justiciability of Socio-Economic Rights of the African Charter on Human and Peoples’ Rights

Abstract

Notwithstanding the indivisibility, interdependence and interrelatedness of human rights that have been embraced by the African Charter from its inception, the justiciability and normative clarity of its socio-economic guarantees show a sharp contrast to their traditional civil and political counterparts. To date, very few cases of socio-economic rights violations have reached the African Commission despite the rampant violations of the rights in question across the continent. Granted that all human and peoples’ rights have been put on par from the very inception, the under-utilization of the regional mechanism for socio-economic rights litigation and enforcement cannot be primarily attributed to the nature of the rights or the ideological divide of past decades. It appears that the establishment of their violations tended to pose especially complex problems. There is a need for innovative approaches to boost the justiciability of the Charter’s socio-economic rights. This paper argues that the justiciability of socio-economic rights can greatly benefit from the use of the right to equality, the right to judicial protection and the right to due process and related jurisprudence of the Commission as a means of establishing violations of socio-economic rights. While direct justiciability of socio-economic rights of the Charter is beyond question, the indirect approach offers the added advantage of showing the violations of socio-economic rights through the violations of the more elaborated rights, hence indirect approach to justiciability. It is the purpose of this paper to explore the latter option.

Keywords: indirect approach, socio-economic rights, African charter, African commission, justiciability, enforcement, communications, complaints, equality, due process, local remedies, domestic remedies, exhastion of remedies, directive principles of state policy, SERAC case