Economic, Social and Cultural Rights: Prospects and Challenges for Their Inclusion in the Next Constitution of Zambia

Mwapela, Sam (2015) Economic, Social and Cultural Rights: Prospects and Challenges for Their Inclusion in the Next Constitution of Zambia. Masters thesis, University of Zambia.

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Abstract

This study examines the prospects and challenges for the inclusion of economic, social and cultural rights in the Constitution of Zambia. The argument put forward is that the most effective way of ensuring that citizens enjoy their basic rights to food, housing, safe and clean water, sanitation, education, health services, culture, tradition, custom and language is by guaranteeing the protection of these rights through the Constitution. The rationale behind the study is that, where economic, social and cultural rights are enshrined in the Bill of Rights of the Constitution, citizens can hold the State and public bodies accountable in courts of law for violations or threatened violations, or denial of their rights by the State and public bodies. The study proceeds from the premise that having these rights in the Constitution would result in a transparent, accountable and equitable distribution of wealth. This would in turn result in a rise of the standard of living of the majority poor Zambians. The study thus employs a socio-legal approach, which is inter-disciplinary. The study starts with the history of constitution-making in Zambia, and later examines the place of economic, social and cultural rights in the reports of successive constitutional review commissions. The study establishes that, despite the majority of petitioners to the constitutional review commissions submitting in favour of constitutionalization of economic, social and cultural rights, these rights have not been put in the Bill of Rights of the Constitution of Zambia. The 1996 Constitution of Zambia, which is the current Constitution, provides for Directive Principles of State Policy under Part IX of the Constitution, which are unenforceable against the State. The study further reveals that, despite the inclusion of economic, social and cultural rights in the current draft Constitution of Zambia, the draft Constitution has derogation clauses which bar the proposed Constitutional Court from passing a decision that is contrary to the position of the executive branch of government, in matters of resource allocations. Further, the study undertakes a comparative perspective of how other jurisdictions have dealt with the subject of constitutionalizing economic, social and cultural rights. Accordingly, the study establishes that the executive, legislature and judiciary as arms of government cannot offer effective protection of citizens‟ economic, social and cultural rights in the absence of constitutional provisions on these rights. Hence the study‟s finding is that the answer lies in enshrining justiciable economic, social and cultural rights in the Bill of Rights as is the case in the South African and Kenyan Constitutions, among other jurisdictions. The study thus concludes by recommending that in order to reduce poverty and ensure equitable distribution of national resources, there is need for legislators and all stakeholders in the constitution-making process to provide for justiciable economic, social and cultural rights in the Bill of Rights, including enforcement and monitoring mechanisms of court judgments in the next Constitution of Zambia.

Item Type:	Thesis (Masters)
Subjects:	K Law > K Law (General)
Divisions:	Africana
Depositing User:	Geoffrey Obatsa
Date Deposited:	29 Jan 2019 08:50
Last Modified:	29 Jan 2019 08:50
URI:	http://thesisbank.jhia.ac.ke/id/eprint/8925

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