Economic, social and cultural rights in Zambia: A critical look at the provisions relating to their protection in the 2010 draft constitution.
Chisuwo, B. Chisuwo
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This dissertation critically analyses the provisions in the draft constitution of the Republic of Zambia, 2010 with regard to economic, social and cultural rights. This paper is written in a setting where currently in Zambia, civil and political rights are constitutionally guaranteed rights. They are contained in the Bill of Rights, Part III of the Zambian Constitution, Chapter 1 of the Laws of Zambia. These rights are justiciable in the Zambian context in that any Zambian citizen can bring an action in the courts of Law for any violation of his/her rights. Economic social and cultural rights are non justiciable. The draft constitution has included them in the bill of rights. This dissertation looks into whether these rights realisable in the Zambian context and what measures can be adopted to ensure the enjoyment of these rights. This paper recommends, in the short term, before economic, social and cultural rights are made justiciable, that firstly, Zambian courts must engage in judicial activism by interpreting civil and political rights widely so as to encompass economic, social and cultural rights. Secondly, Zambia must promote and monitor compliance with the International Covenant on Economic, Social and Cultural Rights, 1966 to which Zambia is a party and is bound by the principle of pacta sunt servanda. This includes ensuring that Zambia strides to achieve the Millennium Development Goals are consistent with Zambia's obligations under international human rights instruments. Thirdly, Zambia must ensure that domestic legislation embodies the economic, social and cultural needs of individuals. In the long-term, when economic, social and cultural rights are made justiciable, this paper recommends, firstly, that institutions should be set up to improve implementation of economic, social and cultural rights. Second, economic, social and cultural rights should be considered in national plans of action. Thirdly, Zambia must find ways to enforce economic, social and cultural rights such as the strengthening of the social welfare. Fourth, Zambia should work to combat corruption. Fifth, Zambia needs to ensure that social goods are made available to individuals at affordable prices. Sixth, Zambia needs to ensure that an expanded approach to access to court is adopted, allow for courts of law to be ultimate judge in relation to whether or not resources have been used to their maximum and ensure that appropriate compensation is given to victims of infringement of economic, social and cultural rights.
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