An integrative rights-based approach to human development in Africa

Dejo Olowu

Description

There is consensus amongst the various theories on the rights-based approach to development that the full realisation of human rights should be a vital goal of development efforts. The integrative rights-based approach to human development canvassed in this book perceives human rights as vital components of development programmes and policies that must necessarily be integrated in all processes designed to deliver the promises of development. This approach contemplates people-centred modalities for development in ways that emphasise equality and non-discrimination; accountability and transparency; and popular participation.About the editor:Dejo Olowu is Professor of Law, Human Rights Activist and Advocate for Social Justice.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2009
• Nombre de lectures: 0
• EAN13: 9780981412467
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

An integrative rights-based approach to human development in Africa

Dejo Olowu

2009

An integrative rights-based approach to human development in Africa

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: ABC Press Cape Town

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights Photograph courtesy of Paul M Watson on Flickr

ISBN: 978-0-9814124-6-7

© 2009

The financial assistance of the Norwegian Centre for Human Rights is gratefully acknowledged.

I

II

TABLE OF CONTENTS

ACKNOWLEDGMENTS

ABBREVIATIONS

DEDICATION

INTRODUCTION 1 Introduction and overview 1.1 Some background discussions 1.2 Linking human rights to development discourses 1.3 Concepts and definitions

UNITED NATIONS AND REGIONAL IMPLEMENTATION FRAMEWORKS 1 Human development in a rights-based context 1.1 The United Nations system 1.1.1 The Covenant on Economic, Social and Cultural Rights Normative content Nature and scope of obligations created Implementation mechanisms States’ periodic reports Concluding observations General comments In-situ visits Individual complaints procedure 1.2 Other UN human rights mechanisms 1.2.1 Treaty bodies 1.2.2 Charter-based mechanisms 1.3 Relevant specialised agencies

2

3

4

The African regional human rights system 2.1 The African Charter 2.1.1 Normative content 2.1.2 Nature and scope of obligations created 2.1.3 Implementation mechanisms States’ periodic reports Individual complaints procedure Promotional mandate 2.2 Other African regional human rights mechanisms 2.2.1 Applicable regional instruments 2.2.2 The emerging African Human Rights Court

Contextualising the rights-based discourse in Africa

Concluding remarks

iii

vii

viii

x

1 1 1 7 15

17

17

19 25

25 26 34 34 37 38 40 41 43 43 46 48

50 52 54 55 59 60 61 64 65 65 67

68

71

144

118

106 108 111 113 116

III

157 158 158 160 160 161 161 161 162 163 163

144 148 152

84

73

85 89 98

104

125 125

123

5

Other national human rights implementation mechanisms 4.1 National human rights commissions 4.1.1 South Africa 4.1.2 Mauritania 4.1.3 Nigeria 4.1.4 Other African national human rights commissions 4.2 Ombudsmanship

ESCR jurisprudence in UN human rights treaty system 3.1 Committee on ESCR 3.2 Human Rights Committee 3.3 Other UN human rights treaty-monitoring bodies

iv

138 141 143

137

ANALYSIS OF DOMESTIC IMPLEMENTATION FRAMEWORKS 1 Overview of the domestic effect of treaties

ESCR jurisprudence in regional human rights systems 4.1 European regional human rights system 4.2 Inter-American regional human rights system 4.3 African regional human rights system

134

Rights-based frameworks in African domestic legal systems 3.1 Bills of Rights 3.2 Fundamental objectives and directive principles 3.3 National legislation

5

4

3

2

Imperative of ESCR jurisprudence

COMPARATIVE JURISPRUDENCE 1 The implementation of economic, social and cultural rights: The justiciability question

Concluding remarks

2

3

4

The promise of constitutionalism

IV

ESCR jurisprudence in national jurisdictions 5.1 Europe 5.1.1 Nordic countries 5.1.2 Hungary 5.1.3 Germany 5.2 Latin America 5.2.1 Argentina 5.2.2 Colombia 5.2.3 Venezuela 5.3 Asia-Pacific 5.3.1 India

73

78

V

VI

6

7

5.3.2 The Philippines 5.3.3 Australia 5.4 Africa 5.4.1 South Africa 5.4.2 Nigeria 5.4.3 Other African countries

Implications for ESCR in Africa

Concluding remarks

REMEDIAL IMPLEMENTATION AND PROPOSAL FOR AN INTEGRATIVE APPROACH 1 Remedial implementation in human rights discourse

2

3

4

5

ESCR and the dilemma of implementation 2.1 Current approaches to standards of implementation 2.1.1 The ‘obligations’ approach The ‘minimum threshold approach’ ‘Resource-based obligations’ 2.1.2 The ‘violations’ approach 2.2 An African response to the dilemma

Paradigms of remedial implementation: Two case studies 3.1 India 3.2 South Africa

Proposal for an integrative approach 4.1 Performance evaluation 4.2 Basic ‘human’ needs 4.3 Administrative justice

Concluding remarks

ROLES AND RESPONSIBILITIES OF NON-STATE ACTORS 1 Sifting the matrix of non-state actors

2

3

4

Basis of the ESCR responsibilities of non-state actors

International financial and trade institutions 3.1 Bretton Woods Institutions 3.1.1 Structural adjustment programmes 3.1.2 Highly indebted poor countries (HIPC) initiative 3.1.3 Poverty reduction strategy papers 3.1.4 Infrastructural ‘development’ projects 3.2 The World Trade Organisation

Development agencies and aid donors 4.1 International development agencies and aid donors

v

167 167 168 168 172 176

1178

181

183

183

188 191

191 192 197 200 204

209

210 214

216 217 221 224

230

233

233

237

241 242 243 246

249 251 254

258 260

VII

5

6

7

4.2 African regional development agencies

ESCR in private sphere 5.1 Transnational corporations and multinational enterprises 5.1.1 Codification of responsibilities 5.2 Sundry actors

Civil society

Concluding remarks

A NEW DEAL FOR AFRICA 1 Final reflections

2

Looking towards the future 2.1 Governance in Africa 2.1.1 African regional arrangements 2.1.2 African national juridical bodies 2.1.3 International community 2.1.4 African civil society Integrative human rights approach Budgetary processes and popular participation Monitoring, research and documentation Multidimensional cutting-edge advocacy

BIBLIOGRAPHY

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264

267 268

273 277

279

283

285 285

288 288 290 293 294 297 298 299 302 303

305

ACKNOWLEDGMENTS

This book is the heavily revised version of my doctoral thesis submitted to the University of Notre Dame in the Spring of 2004. Because of my incessant professional sojourn in Denmark, Macedonia, Ireland and Vanuatu, the idea of publishing the thesis had been forced to remain in the backburner. Upon my return to the African continent in the Winter of 2006, therefore, I had listed the publication of my thesis as a top priority project.

Even though I have devoted appropriate pages of my doctoral thesis to acknowledging the support I received from numerous institutions, scholars, jurists, relations and friends towards and in the course of my doctoral studies in the United States, certain institutions and individuals still deserve my express gratitude at the materialisation of this book.

I am particularly grateful to Professor Dinah Shelton who provided me with that lifetime opportunity of studying at Notre Dame; Professor Paolo Carozza who was the astute shepherd of my thesis at Notre Dame; Dr. Kola Olaniyan of the Amnesty International whose constant messages gave me inspiration and strength in times of need.

To Professor Christof Heyns of the University of Pretoria goes my heartfelt gratitude for having faith in me and in this book project when I raised it in Dakar in 2007. I must also place on record the unflinching support of the entire editorial team of the Pretoria University Law Press (PULP) throughout the editorial stages of this book. In same vein, I specially thank Danie Brand for being such a huge source of assurance and encouragement.

I also express gratitude to my numerous other mentors and promoters in the course of my academic endeavours – the Honourable Justice Diran Akintola; Professor Yemi Akinseye-George; Professor Sandra Liebenberg; Professor Julia Sloth-Nielsen; and Professor Vincent Rougeau.

My profound appreciation goes to every member of the Olowu family of Oke-Igbo, Nigeria, and my numerous friends, colleagues and well-wishers everywhere.

Mindful of the enormous amount of hard work and pain that went into the production of this book, I am eternally grateful to the Almighty God for the wisdom and strength that sustained it.

October 2009

vii

ADB AEC AIR AU BCLR CAT

CBOs CCPR CEDAW

CERD

CESCR CFRN

CRC CRPD DANIDA ECA ECOSOC ECOWAS ESCR ETS FAO FINNIDA GATT HIPC HIV/AIDS

HRC IFIs IHRDA ILO IMF INESCR

INGOs

ABBREVIATIONS

African Development Bank African Economic Community All India Reports African Union Butterworths Constitutional Law Reports Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Community Based Organisations Covenant on Civil and Political Rights Convention on the Elimination of All Forms of Discrimination against Women Convention on the Elimination of All Forms of Racial Discrimination Covenant on Economic, Social and Cultural Rights Constitution of the Federal Republic of Nigeria Committee on ESCR (UN) Committee on Economic, Social and Cultural Rights Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities Danish International Development Agency Economic Commission for Africa (UN) Economic and Social Council Economic Community of West African Countries Economic, Social and Cultural Rights European Treaty Series Food and Agricultural Organisation Finnish International Development Agency General Agreement on Tariffs and Trade Highly Indebted Poor Countries Highly Immunodeficiency Virus/Acquired Immune Deficiency Syndrome (UN) Human Rights Committee International Financial Institutions Institute for Human Rights and Development in Africa International Labour Organisation International Monetary Fund International Network on Economic, Social and Cultural Rights International Non-Governmental Organisations

viii

LFN MNEs MWC

NCLR NEPAD NGOs NNHRC NWLR OAU OAS OECD

PRSPs SAHRC SAPs SCC TNCs TRIPs UDHR UN UNCTAD UNDP UNEP UNESCO

UNFPA UNICEF UNIFEM UNTS USAID VCLT WHO WTO

Laws of the Federation of Nigeria Multinational Enterprises Convention on the Rights of All Migrant Workers and Members of their Families Nigerian Constitutional Law Reports New Partnership for Africa’s Development Non-Governmental Organisations Nigerian National Human Rights Commission Nigerian Weekly Law Reports Organisation of African Unity Organisation of American States Organisation for Economic Co-operation and Development Poverty Reduction Strategy Papers South African Human Rights Commission Structural Adjustment Programs Supreme Court Cases (India) Transnational Corporations Trade-Related Aspects of Intellectual Property Rights Universal Declaration of Human Rights United Nations United Nations Conference on Trade and Development United Nations Development Programme United Nations Environment Programme United Nations Educational, Scientific and Cultural Organisation United Nations Population Fund United Nations Children's Fund United Nations Development Fund for Women United Nations Treaty Series United States Agency for International Development Vienna Convention on the Law of Treaties World Health Organisation World Trade Organisation

ix

DEDICATION

To the blessed memory of my father and first school teacher, Reverend Isaac Ojo Olowu (1913-1984), who literally led me into the classroom of life and instructed me to ‘speak out’

And

The teeming millions of Africans wallowing in abject poverty, disease, ignorance and squalor in the midst of plenty.

x

I HAPTER C

I NTRODUCTION

By their very nature, economic and social [including cultural] rights imply that conditions of poverty and deprivation will be satisfied. By recognising these rights, the eradication of poverty becomes not merely a policy choice for the state, but a legally binding 1 responsibility for which it is accountable.

1

Introduction and overview

1.1 Some background discussions

While the aggregation of national growth rates in the overall conditions of world populations in the years that followed the Cold War led to the hasty suggestion that Africa had recorded ‘rapid 2 improvement’ in human development indices, a more thorough analysis reveals sharp contradictions. Before, and particularly since the end of the Cold War, a gloomy picture of human development indices in Africa consistently radiated through all the scientific standards of measuring human growth and progress around the world. A quick look at any of theHuman Development Reports (Reports) produced by the United Nations Development Programme (UNDP) since 1990 shows that the plight of most Africans has remained parlous 3 in terms of the overall trends of poverty and human deprivations.

1

2

3

S Liebenberg & K PillayPoverty and human rights report of the national ‘speak out on poverty’ hearings(1998) 2. See generally RA Easterlin ‘The globalisation of human development’ 570Annals (2000) 35-38. All UNDP’sHuman development reportsavailable at http://www.undp.org. are See particularly UNDPHuman development report 2007-2008: Fighting climate change: Human solidarity in a divided world(2008). Other instruments of global human development measurement include the ‘World development reports’ and ‘World development indicators’(both produced annually by the World Bank), http://www.worldbank.org; United Nations Educational, Scientific and Cultural Organisation (UNESCO) Statistical yearbook; United Nations Children’s Fund (UNICEF)State of the world’s children; and the World Health Organisation (WHO)

1