Maravi

‘Rejecting socioeconomic rights from constitution is worst insult’

‘Rejecting socioeconomic rights from constitution is worst insult’
By Ernest Chanda
Wed 12 May 2010, 04:00 CAT

PROFESSOR Michelo Hansungule has observed that the decision by the National Constitutional Conference (NCC) delegates to reject enshrining socioeconomic rights in the new constitution is the worst insult to majority poor Zambians.

In an interview from his base in Pretoria, South Africa, the human rights law Professor said it was troubling that NCC delegates chose to mislead the masses.

“The most troubling aspect of all this is that people who ought to know better mislead the masses. The NCC’s decisions recently to catapult the few socio-economic rights from the Constitution is the worst insult yet by well fed, well looked after few individuals to the majority poor. It is extremely sad that the few socioeconomic rights that Willa Mung'omba and his team had recommended for protection by the basic law were shown the door by the NCC, of course, with government support behind. The problem here is leadership. Effective leadership would make a huge difference in processes of this nature," Prof Hansungule observed.

“The statements by NCC chairman Chifumu Banda and justice deputy minister Todd Chilembo following the arbitrary dismissal of these rights clearly shows what happens in the absence of effective leadership. As indicated above, most of these rights are already binding on Zambia through treaties Zambia has ratified at the African Union and the United Nations which are on file at the Ministry of Justice.

At the elementary level, the objective behind ratifying or acceding to those treaties is that they would be domesticated, which means enshrined into the constitution as rights that they are at international level and citizens given opportunity to claim them when in situations contemplated in those instruments.”

Prof Hansungule argued that NCC delegates could not support the rights to shelter, water and food because they were first misled by former chief justice Mathew Ngulube's presentation to the plenary.

"Former chief justice Mathew Ngulube addressed the NCC delegates on this issue in the paper in my possession and you could see after reading that speech why delegates could not but throw the rights away. Justice Ngulube's argument, which was not countered, was simply that these are not rights to include in the constitution or empower courts to enforce. Chifumu Banda reinforced this visibly lame argument with the observation that they are not there in the majority of African constitutions but how sad all this? Why are they there in the South African Constitution and why are South African and Indian courts enforcing them?" he asked.

"Should we believe the illogical conclusion that South African and Indian judges who enforce these rights must not be real judges? Real judges enforce only civil and political rights? In India, which doesn't even have these rights as justiciable rights in the Constitution, nevertheless, judges use civil and political rights like the right to life to enforce adequate housing, clean water, freedom from hunger, etc. Hence the court is a very practical instrument for ensuring dignity in the practical sense."

He said all those who wanted to cheat the government had always used various excuses such as budgetary provisions.

"When some hypocrites want to cheat government, they usually say government has always been providing for the socio-economic rights and use the budget as a tool to justify their mischievous positions. It is true that government, every government, must have a budget plan which it announces every year in which it indicates what it hopes to raise mostly from taxes and how to spend it on education, salaries, health care, etc. But this has nothing to do about ensuring socio-economic rights in the constitution. Providing for socio-economic rights in the country's basic law empowers citizens faced with real dignity challenge to approach the courts to seek protection," Prof Hansungule explained.

“Someone said to me 'well, don't you think because there are more poor than rich people, courts would be flooded with legal actions from poor people seeking this or that remedy?' What a point to raise? The majority of people wherever you are, are poor yet they have not made the lives of the few rich miserable. How can one say once socio-economic rights are enshrined in the constitution, the poor will sleep in the High Court? Right now, they sleep outside without shelter leaning on banks with money and it never crosses their mind to break into the buildings they are leaning on to help themselves.

Rather, it is the rich, well-paid politician who will steal from inside the bank out of greed. In South Africa, where these rights have been enshrined in the basic law, there have been no floods of poor people to courts. The poor go to court only in extremely difficult situations!"

Prof Hansungule said the same social rights were being implemented in India without difficulty.

"Again, the issue that socio-economic rights are not for judges to enforce? In India, besides the Supreme Court which has become so open to applications for socio-economic rights' claims, retired chief justices and judges appointed to the Human Rights Commission of India - real Commission - are monitoring and implementing these rights as we speak without difficulty. These are judges and common law trained lawyers. Sometimes, victims visit them but often they take cases from newspaper reports about famine and so on, and they convene the commission purely on the basis of their own initiative without a victim standing in front of them; order an inquiry into the report (s) and make necessary orders and recommendations which often are taken seriously by authorities,” he explained.

“There have been no questions such as 'is an economic right a legal right?' We must fight for a fairer society; one which looks out for the most vulnerable member of society to give him or her also a chance. Well, the NCC in its wisdom has refused. It is for the rights of powerful people only. But such things don't last. As soon as it is disbanded, a proper NCC will convene this time to truly deliver the wishes of the people."

He said leaders could not respect social rights such as health because they had alternative health facilities outside the country.

"Health care is in similar if not worse condition. This is confirmed by the leaders themselves each time they shun local health care facilities in preference to outside facilities. Some of them frequent South African hospitals for reviews but cease to do so immediately they are acquitted of criminal cases.

So, although the human being is basically the same at least from his or her original make-up, our society has accepted the inequitable principle that it is fine, taxpayer's money can be used to support leaders' medical needs abroad while others can die in our dysfunctional institutions. It is difficult to comprehend let alone find a word to best describe this!" lamented Prof Hansungule.

"Article 11 of the Constitution eloquently speaks about the right to equality of all, yet the reality is in George Orwell's words 'all animals are equal, but some animals are more equal than others!' Why can't we take Morning Side Clinic to Lusaka, to provinces, to districts and even to villages in line with the Constitution? Isn't this good governance in its basic sense? Democracy means if government cannot bring Morning Side Clinic to Lusaka, you use your vote to remove it from power so that you try another one."

Over three weeks ago, NCC delegates refused to enshrine in the new constitution shelter, food and water as basic human rights. Justice deputy minister Todd Chilembo argued that the idea was utopia. The NCC plenary adjourned over a week ago and the secretariat is now compiling a draft report to take to the public for scrutiny.

Labels: HUMAN RIGHTS, MICHELO HANSUNGULE, TODD CHILEMBO

posted by MrK @ 4:09 PM