Mesle A.
Civil and political rights have
always received more attention in national and international levels than
socio-economic rights. It is fair to say that much more has been achieved in
Ethiopia in the realm of civil and political rights in the last two decades.
Many people freely exercise and enjoy the fundamental rights and freedoms
recognized and protected in the Federal Democratic Republic of Ethiopian (FDRE)
Constitution and ratified agreements, most of which are civil and political
rights. The last two decades also saw an unprecedented progress in the
socio-economic standard of the population. The improvement however is the
result of the economic growth and the pro-poor policies of the government
without greater exercise of socio-economic rights. .
Socio-economic rights relate to an
individual social, economic and cultural entitlements, which for long have been
recognized at the international level since the adoption of the Universal Declaration
of Human Rights (UDHR) after the end of world war. It consists of the right to work,
right to social security and social insurance, right to an adequate standard of
living including food, clothing, housing, and to continuous improvement of the
standard of living, right to health, and the right to education, among others.
After the introduction of human rights into international law discourse through
the UDHR, the ideological divide between the West and the East found its way
into negotiations for the development of the framework for the recognition and
protection of human rights. This divide, however, resulted in the creation of a
dichotomy of human rights along the existing Cold War groupings with the West
placing emphasis on civil and political rights and the East showing a
preference for socio-economic rights. This has been followed by the adoption of
the first legally binding international instrument that established States
legal obligations to protect a number of socio-economic rights.
Although the value of socio-economic
rights for the survival of an individual is uncontested, their justiciability
has been exposed to debate and dogged the international human rights movement
even after the adoption of a separate legal instrument for their protection. As
a result, some view socio-economic rights as aspirational and non-justiciable
rights and civil and political rights as immediately realizable and justiciable
rights. Nevertheless, this distinction has been discredited in different World
Conferences on Human Rights by concluding that all human rights are universal,
interdependent, interrelated and indivisible and by the involvement of the judiciary
in the adjudication of socio-economic rights in some legal systems like South Africa.
Since the 1990s, African States have
succeeded in giving more attention and renewed status to those rights through
the incorporation of them in their constitutions with their own modes of
constitutionalization of rights. The
translation of human rights into domestic constitutional language, however,
does not avoid the hierarchical classification of rights existed at the
international level. Quite similar to the practice at the international level,
most national constitutions in Africa recognize civil and political rights as
immediately enforceable rights. However, socio- economic rights are pieced
together with other political aspirations and policy statements as
non-justiciable fundamental objectives and directive principles of state policy,
though most Constitutions may also incorporate at least some of them in the
substantive part as justiciable rights.
The Constitution of the Federal
Democratic Republic of Ethiopia (FDRE) has also integrated socio-economic
rights both in its substantive part dealing with “Fundamental Rights and
Freedoms” and in the National Policy Principles and Objectives (NPPO) of the
Constitution, which is commonly known in other legal systems as Directive
Principles of State Policy (DPSP). The protection of socio-economic rights in
Ethiopia also extends to ratified international agreements. Although their
incorporation in the substantive part of the Constitution has given them equal
status with those of civil and political rights at least theoretically, the
inclusion of them in the NPPO creates doubt as to their actual legal status.
This is due to the fact that provisions found in DPSP are generally considered
as guidelines by which the organs of the state have performed their functions,
and are not legally enforceable before court of law.
Several scholars consider the
socio-economic rights found in the NPPO of the FDRE Constitution as mere aspirations
that only direct the government in the implementation of the Constitution, and are
not enforceable before court of law. The characterization of socio-economic
rights as non-justiciable would inevitably contribute to the violation of them
in our legal system.
The absence of a procedure of
action-popularis in human rights litigation in Ethiopia under the Constitution
contributes for the under-development of justiciability jurisprudence of
socio-economic rights in the country. This is due to, most of the time, individuals
that have been exposed to violations of socio-economic rights are the poorest section
of the society, who are marginalized both in their economic capacity as well as
their human rights awareness. Therefore, they may not be in a position to
access the court due to cost implications of the judicial process or their lack
of awareness about their respective rights. Thus, the government in order to
ensure the judicial enforceability of these rights should allow legal standing
to public interest litigants without a need to show vested interest in human
rights cases. This will enable NGOs and other local human rights activists to
fight violations of human rights in general and socio-economic rights in particular
via taking cases to courts instead of the international media where it will be
politicized up to a point it backfires.
There are some laws in Ethiopia that
contain provisions ousting the jurisdiction of courts with regard to some
aspects of socio-economic rights. “For instance, Article 18 of Proclamation No.
272/2002 contains an explicit provision ousting the jurisdiction of the judiciary
on points of law and fact regarding cases of eviction. A similar provision regarding
the jurisdiction of the court is also found in Article 37 of the Council of Ministers
Regulation No. 155/2008, because the decision of the director concerning the dismissal
of employees of the authority is final as to the point of law and fact. In both
instruments, the court is only allowed to see disputes concerning the amount of
compensation.” (Amare, 2010)
The presence of such kind of
legislations inevitably will contribute to the continuity of the
under-development of justiciability law of socio-economic rights.
There is a gap between the legal
possibility and the practice on the justiciability of socio-economic rights in
the country. So, in order to bridge such gap and enhance the justiciability of socio-economic
rights in Ethiopia, The taking of these measures hopefully ensures the better protection
of socio-economic rights by the judiciary in Ethiopia. When there is the
understanding of the judiciary of these rights as administrative matters. On
the other hand the government is saying it is fighting serious
maladministration hence treating socio-economic rights as administrative rights
will render them vulnerable to maladministration. In light of the turmoil we
experiences as a result of grievances from maladministration that regressed on
socio-economic rights, it will be wise to empower the judiciary in the
protection of these rights thereby putting a check on maladministration and
also for institutionalized fight for good governance.
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