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The Place of the “Minimum Core Approach” in the Realisation of the Entrenched Socio-Economic Rights in the 2010 Kenyan Constitution

Published online by Cambridge University Press:  09 July 2015

Nicholas Wasonga Orago
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Abstract

The high levels of poverty, inequality and socio-economic marginalisation that bedevilled Kenya for generations led to a struggle for a new constitutional dispensation, which culminated in the promulgation of a new, egalitarian and transformative constitution in August 2010. This constitution entrenched justiciable socio-economic rights within an elaborate Bill of Rights. Though an important step in the process of the egalitarian transformation of the country, the challenge remains to transform these precepts into practice with their scrupulous implementation through legislative, policy and programmatic frameworks, as well as judicial decision-making. This article argues that, in order to achieve the intended egalitarian transformation, Kenya must adopt a strong interpretive approach, with sufficient foundational standards for the translation of these rights into tangible realities for Kenyans. Kenya must therefore explicitly adopt a minimum core approach for the realisation of these rights to transform them into practical realities for the poor, vulnerable and marginalised Kenyans.

Type
Research Article
Information
Journal of African Law , Volume 59 , Issue 2 , October 2015 , pp. 237 - 270
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Copyright © SOAS, University of London 2015 

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References

1 Government of Kenya “Poverty reduction strategy paper: First medium term plan 2008–2012” (submitted to the International Monetary Fund) at ii, available at: <http://www.imf.org/external/pubs/ft/scr/2010/cr10224.pdf> (last accessed 8 June 2013). However, many commentators have argued that the actual percentage of people living below the poverty line is higher than government estimates, with the percentage placed at 56–65% and rising. See: Foundation for Sustainable Development “Kenya: A development overview”, para 4, available at: <http://www.fsdinternational.org/country/kenya/devissues> (last accessed 8 June 2013); J Kiringai et al “Feminisation of poverty in Kenya: Is fiscal policy the panacea or Achilles’ heel?” (paper presented during the 5th PEP Research Network general meeting, Addis Ababa, Ethiopia, 18–22 June 2006), available at: <http://www.pep-net.org/sites/pep-net.org/files/typo3doc/pdf/files_events/5th_ethiopia/Kiringai.pdf> (last accessed 13 June 2015).

2 See The World Bank Poverty Reduction and Economic Management Unit “Kenya poverty and inequality assessment: Synthesis report” (Africa region report, June 2008) at ii, available at: <http://siteresources.worldbank.org/INTAFRREGTOPGENDER/Resources/PAKENYA.pdf> (last accessed 13 June 2015).

3 See International Fund for Agriculture and Development “Kenya: Programme for rural outreach of financial innovations and technologies (PROFIT) programme design report” (May 2010) vol 1 at 5, available at: <http://www.ifad.org/operations/projects/design/100/kenya.pdf> (last accessed 8 June 2013).

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7 The Committee on the Convention on Elimination of all Forms of Racial Discrimination (CERD Committee) has noted that ethnic tensions and continued ethnic violence are due to the failure by the state to address ethnic and regional disparities in the enjoyment of economic and social rights, leading to resentment. The committee has therefore urged the state to enhance resource allocation to address disparities in access to socio-economic goods and services, especially in historically marginalized areas and communities. This should be aimed at the reduction of inequality through employment and education, and this effort should be anchored in the state's poverty reduction policies and strategies. See CERD Committee “Concluding observations of the Committee on the Elimination of Racial Discrimination: Kenya” (CERD/C/KEN/CO/1-4, September 2011), para 23, available at: <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/KEN/CO/1-4&Lang=En> (last accessed 13 June 2015).

8 See M Barasa “Rural poverty in Kenya” (2007) Contemporary Review 289 at 294–95.

9 CS Adam et al Kenya: Policies for Prosperity (2010) at 1.

10 UNDP indicators show that Kenya's gross national income per capita increased by about 11% between 1980 and 2011; see UNDP “Sustainability and equity”, above at note 5 at 2.

11 According to Society for International Development “Pulling apart: Facts and figures on inequality in Kenya” (popular version, 2004) at 1, available at: <http://www.sidint.net/docs/pullingapart-mini.pdf> (last accessed 8 June 2013), inequality is: “The degree to which distribution of economic welfare generated in an economy differs from that of equal shares among its inhabitants … It is observed not only in incomes but also in terms of social exclusion and the inability to access social services and socio-political rights by different population groups, genders and even races.”

12 Tegemeo Institute Agricultural Policy and Development, Egerton University “Rural incomes, inequality and poverty dynamics in Kenya” (2009) at 2, available at: <http://www.tegemeo.org/images/downloads/Working%20papers/Tegemeo-WP30-Rural-incomes-inequality-poverty-dynamics-Kenya.pdf> (last accessed 13 June 2015).

13 Id at 4.

14 The Gini coefficient varies within a range of 0 to 1, with 0 indicating perfect equality between households, while 1 indicates perfect inequality. The Gini coefficient of most African countries ranges from about 0.40 to 0.50, while most developed countries have a coefficient ranging from 0.20 to 0.30, indicating that developed countries have less inequality than developing countries. See id at 8. Oxfam Great Britain indicates that the Gini coefficient for rural areas in Kenya is 0.38, while that of Nairobi is a staggering 0.59, indicating similar inequality levels to those in Johannesburg (South Africa) in the mid-1990s; see Oxfam Great Britain “Urban poverty and vulnerability in Kenya: Background analysis for the preparation of an Oxfam GB urban programme focused on Nairobi” (September 2009) at 3, available at: <http://www.irinnews.org/pdf/Urban_Poverty_and_Vulnerability_in_Kenya.pdf> (last accessed 8 June 2013).

15 World Bank “World development indicators 2011” (April 2011) at 67–70, available at: <http://elibrary.worldbank.org/doi/book/10.1596/978-0-8213-8709-2> (last accessed 21 May 2015).

16 See World Bank “Kenya poverty and inequality assessment”, above at note 2 at 3.

17 Satrose Ayuma and 11 Others v The Attorney General and 2 Others High Court petition no 65 of 2010 at 22.

18 The justiciability of the SERs in the constitution is affirmed by: their entrenchment as an integral part of the Bill of Rights; the constitutional empowerment of a wide array of parties to access courts in instances of the violation, infringement, denial or threatened infringement of these rights as per art 22; and the constitutional conferment of jurisdiction on the Kenyan courts to hear and determine applications for the violation of rights and to redress such violations through the adoption of effective remedies, as per art 23 read with art 165 of the constitution.

19 Art 21 deals with the implementation of rights and fundamental freedoms and sub-art (2) requires the state to “take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under article 43”.

20 Art 43 is entitled “Economic and social rights” and provides in art 43(1) that: “Every person has the right – (a) to the highest attainable standard of health, which includes the right to healthcare services, including reproductive health; (b) to accessible and adequate housing, and to reasonable standards of sanitation; (c) to be free from hunger, and to have adequate food of acceptable quality; (d) to clean and safe water in adequate quantities; (e) to social security; and (f) to education.” Art 43(2) prohibits the denial of emergency medical treatment and art 43(3) requires the state to provide social security to persons who are unable to support themselves and their dependants.

21 Every child's right to free and compulsory education.

22 Every child's right to basic nutrition, shelter and healthcare.

23 See the 1996 South African Constitution, secs 26, 27 and 28.

24 The 2010 Constitution, art 41.

25 A complete analysis of art 2(6) is beyond the scope of this article, but the author has dealt with this issue elsewhere; see Orago, N “The 2010 Kenyan Constitution and the hierarchical place of international law in the Kenyan domestic legal system: A comparative perspective” (2013) 13 African Human Rights Law Journal 415Google Scholar.

26 Among others: John Kabui Mwai and 3 Others v Kenya National Examination Council and 2 Others High Court of Kenya at Nairobi, pet no 15 of 2011 at 6 (“Under article 2(6) of the constitution the convention forms part of our laws”); Okwanda v The Minister of Health and Medical Services and 3 Others High Court of Kenya at Nairobi, pet no 94 of 2012, para 12 (“Apart from constitutional provisions governing economic and social rights, art 2(6) provides that treaties and conventions ratified by Kenya shall form part of the law of Kenya”); Mitu-Bell Welfare Society v Attorney General and 2 others Nairobi pet no 164 of 2011 at 15 (“Article 2(5) and (6) of the constitution make the general rules of international law and any treaty or convention that Kenya has ratified part of the law of Kenya. Consequently, the state, state organs and all persons, in carrying out evictions, should do so in accordance with the United Nations Guidelines on Evictions”).

27 In the Matter of the Principle of Gender Representation in the National Assembly and the Senate Supreme Court of Kenya, advisory opinion, appln 2 of 2012, dissenting advisory opinion of Chief Justice Willy Mutunga, para 11.1.

28 Adopted and opened for signature, ratification and accession by GA res 2200A (XXI) of 16 December 1966, entered into force 3 January 1976, assented to by Kenya 1 May 1972, available at: <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx> (last accessed 13 June 2015).

29 Adopted and opened for signature, ratification and accession by GA res 44/25 of 20 November 1989, entered into force 2 September 1990, in accordance with art 49. Ratified by Kenya 30 July 1990. Available at: <http://www.ohchr.org/en/professionalinterest/pages/crc.aspx> (last accessed 13 June 2015).

30 Adopted and opened for signature, ratification and accessions 18 December 1979, entered into force 3 September 1981, assented to by Kenya 9 March 1984, available at: <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx>  (last accessed 13 June 2015).

31 Adopted by GA res A/RES/61/106, 24 January 2007, signed by Kenya 30 March 2007 and ratified 19 May 2008, available at: <http://www.unhcr.org/refworld/docid/45f973632.html> (last accessed 8 May 2013).

32 Kenya has ratified 49 ILO conventions, 43 of which are in force and 6 have been denounced. Some of the conventions in force include: The Forced Labour Convention, 1930 (No 29); The Right to Organise and Collective Bargaining Convention, 1949 (No 98); Equal Remuneration Convention, 1951 (No 100); Abolition of Forced Labour Convention, 1957 (No 105); Discrimination (Employment and Occupation) Convention, 1958 (No 111); Minimum Age Convention, 1973 (No 138); and Worst Forms of Child Labour Convention, 1999 (No 182). For full ratification information, see: <http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ID:103315> (last accessed 13 June 2015).

33 Adopted and opened for signature, ratification and accessions 1 June 1981, entered into force 21 October 1986, ratified by Kenya 23 January 1992, available at: <http://www.au.int/en/sites/default/files/banjul_charter.pdf> (last accessed 21 May 2015).

34 Adopted and opened for signature, ratification and accession 1 July 2003, entered into force 25 November 2005, ratified by Kenya 6 October 2010, available at: <http://www.au.int/en/sites/default/files/Protocol%20on%20the%20Rights%20of%20Women.pdf> (last accessed 21 May 2015).

35 Adopted and opened for signature, ratification and accession 1 July 1990, entered into force 29 November 1999, ratified by Kenya 25 July 2000, available at: <http://www.au.int/en/sites/default/files/Charter_En_African_Charter_on_the_Rights_and_Wlefare_of_the_Child_AddisAbaba_July1990.pdf> (last accessed 21 May 2015).

36 The Principle of Gender Representation, above at note 27, para 52.

37 2010 Constitution, art 21(1). For an elaboration of the content of these obligations in relation to the SERs in the Kenyan Constitution, see Mitu-Bell Welfare Society, above at note 26 at 22–23.

38 Social and Economic Rights Action Centre and Another v Nigeria (2001) AHRLR 60 (ACHPR) 2001, paras 44–47.

39 For an elaboration of these obligations at the international level using the tripartite typology, see A Eide “The human right to adequate food and freedom from hunger” (final report prepared for the UN Sub-Commission on Human Rights) E/CN.4/Sub.2/1987/23, available at: <http://www.fao.org/docrep/W9990E/w9990e03.htm> (last accessed 2 July, 2013); A Eide “Economic, social and cultural rights as human rights” in A Eide, C Krause and A Rosas (eds) Economic, Social and Cultural Rights: A Textbook (2001, Martinus Nijjhof)  9 at 22–28; D Bilchitz Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (2007, Oxford University Press) at 184 and 195–96; MCR Craven The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1998, Clarendon Press) from 330, among others.

40 Kabui Mwai, above at note 26 at 6.

41 Z Yacoob “The entrenchment and enforcement of socio-economic rights” (paper presented at the judges' conference to mark the inauguration of the new South African Constitutional Court building, 18–20 March 2004) at 3, available at: <http://housingjustice.ca/wp-content/uploads/2012/03/the-entrenchment-and-enforcement-of-socio-economic-rights.pdf> (last accessed 27 January 2013).

42 J Chowdhury “Judicial adherence to a minimum core approach to socio-economic rights: A comparative perspective” (paper presented at the fifth inter-university graduate student conference, Cornell Law School, March 2009) at 2, available at: <http://scholarship.law.cornell.edu/lps_clacp/27> (last accessed 2 June 2013). Chowdhury contends (at 5–6) that, without identifying the tangible content of SERs and linking that content to the actual satisfaction of material needs, SERs are reduced to meaningless rhetoric.

43 S Rosa and M Dutschke (Children's Institute, University of Cape Town) “Child rights at the core: A commentary on the use of international law in South African court cases on children's socio-economic rights” (a Project 28 working paper, May 2006) at 12; Robertson, RE “Measuring state compliance with the obligation to devote the ‘maximum available resources’ to realising economic, social and cultural rights” (1994) 16 Human Rights Quarterly 693CrossRefGoogle Scholar at 701. See also M Craven “Assessment of the progress on adjudication of economic, social and cultural rights” in J Squires, M Langford and B Thiele (eds) The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (2005, Australian Human Rights Centre, The University of New South Wales, in collaboration with the Centre on Housing Rights and Evictions) 27 at 39, who defines the minimum core content of rights as representing a quantitative or qualitative threshold of enjoyment; and the South African Human Rights Commission “7th report on economic and social rights: Millennium Development Goals and the progressive realisation of economic and social rights in South Africa: 2006–2009” (2010) at 14, where the commission affirms that the minimum core obligations are an inherent component of the progressive realisation test and that the two cannot be divorced from one another.

44 A Chapman and S Russell “Introduction” in A Chapman and S Russell (eds) Core Obligations: Building a Framework for Economic, Social and Cultural Rights (2002, Intersentia) 1 at 9.

45 KG Young Constituting Economic and Social Rights (2012, Oxford University Press) at 67–68.

46 Gen Comm No 3, para 10.

47 See for example: Gen Comm No 12 on the right to adequate food, paras 6, 8 and 33; Gen Comm No 13 on the right to education, para 57; Gen Comm No 14 on the right to the highest attainable standard of health, paras 43 and 47; Gen Comm No 15 on the right to water, para 37; Gen Comm No 17 on the author's right to benefit from the moral and material interests resulting from any scientific, literary or artistic production, para 39; Gen Comm No 18 on the right to work, para 31; Gen Comm No 19 on the right to social security, paras 59–61; and Gen Comm No 21 on the right of everyone to take part in cultural life, paras 55, 59 and 67.

48 Alston, P “Out of the abyss: The challenges confronting the new United Nations Committee on Economic, Social and Cultural Rights” (1987) 9 Human Rights Quarterly 332CrossRefGoogle Scholar at 352–53.

49 “Employment, growth and basic needs: A one-world problem” (report of the director-general of the International Labour Office, 1976) at 7, quoted in Olowu, D “Human development challenges in Africa: A rights-based approach” (2004) 5 San Diego International Law Journal 179Google Scholar at 200.

50 Id at 201.

51 CESCR Gen Comm No 3, para 10, which states that “it must be noted that any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned”.

52 Ibid.

53 Ibid.

54 Id, para 11.

55 Id, para 12; Chapman and Russell “Introduction”, above at note 44 at 10.

56 CESCR Gen Comm No 14 (2000) covering the right to the highest attainable standards of health, para 47 (emphasis added).

57 CESCR Gen Comm No 15 (2003) covering the right to water, para 40 (emphasis added).

58 African Commission on Human and Peoples' Rights “The principles and guidelines on the implementation of economic, social and cultural rights in the African Charter on Human and Peoples’ Rights” (adopted May 2010), para 16, available at: <http://www.achpr.org/files/instruments/economic-social-cultural/achpr_instr_guide_draft_esc_rights_eng.pdf> (last accessed 13 June 2015).

59 Id, para 17 (footnotes omitted).

60 Second progress report prepared by Danilo Turk, special rapporteur, UN Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/1991/17, para 52(d), available at: <http://www.unhchr.ch/huridocda/huridoca.nsf/%28Symbol%29/E.CN.4.SUB.2.1991.17.En?Opendocument> (last accessed 10 June 2013). See also Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, principle 25, available at: <http://www.acpp.org/RBAVer1_0/archives/Limburg%20Principles.pdf> (last accessed 13 June 2015); and Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, guideline 9, available at: <https:// www1.umn.edu/humanrts/instree/Maastrichtguidelines_.html> (last accessed 13 June 2015).

61 Liebenberg, S “The value of human dignity in interpreting socio-economic rights” (2005) 21 South African Journal on Human Rights 436CrossRefGoogle Scholar.

62 For a more complete development of these arguments, see Bilchitz Poverty and Fundamental Rights, above at note 39 at 150–66 and 221; id “Health” in S Woolman et al (eds) Constitutional Law of South Africa (2nd ed, 2009, Juta) chap 56A at 31–32, where Bilchitz avers that one of the evils sought to be remedied by the introduction of the minimum core concept was the lack of practical benchmarks against which to evaluate state efforts to realise entrenched SERs.

63 D Brand “The proceduralisation of South African socio-economic rights jurisprudence or ‘what are socio-economic rights for?’” in H Botha, A van der Walt and J van der Walt (eds) Rights and Democracy in a Transformative Constitution (2003, Sun Press) 33 at 36–37. He emphasizes that the real problem to be targeted by efforts aimed at the realisation of SERs should be deprivation and hardship itself. He contends that, in adopting the reasonableness approach, the South African Constitutional Court distanced itself from the concrete particular realities of hunger, homelessness, disease and illiteracy with which the entrenchment of SERs was intended to deal. He enumerates (at 51–56) the negative effects of the reasonableness approach to be: the failure to enhance the realisation of the transformative potential of the constitution; the discouragement of future creative SER litigation aimed at effecting social change; the burdening of indigent litigants with the burden to prove the unreasonableness of state policy; the availability of limited tools for the courts to deal with subsequent SER litigation; and the lack of substantive standards to guide the state in future socio-economic policy-making.

64 Id at 44–51. He points out that the major failure of the South African Constitutional Court's reasonableness approach is the failure to develop substantive content for SERs. He states (at 48–49) that, due to this failure, the court cannot, in the conduct of its reasonableness analysis, determine whether the state's policy in question is capable of achieving the relevant right (as the substantive content of the essential referent right is not developed), leaving the court only with the option of evaluating whether the policy in question is rational, coherent, comprehensive and inclusive, among other good governance standards.

65 S Liebenberg Socio-Economic Rights Adjudication under a Transformative Constitution (2010, Juta & Co) at 142.

66 Bilchitz Poverty and Fundamental Rights, above at note 39 at 146.

67 Ibid.

68 2010 Constitution, art 23.

69 ICESCR, arts 16–20.

70 Id, arts 21–22.

71 It was established under ECOSOC res 1985/17 of 28 May 1985, ESC res 1985/17, 1985 UN ESCOR supp (No 1) at 15, UN doc E/1985/85 (1985).

72 See Alston “Out of the abyss”, above at note 48 at 333. He details (at 335–49) the failures of the working group which led to the establishment of the CESCR.

73 ESC res 1985/17, above at note 71, para b.

74 Id, para f.

75 Alston “Out of the abyss”, above at note 48 at 349–79.

76 CEDAW, art 17.

77 Id, art 29(1).

78 CRC, art 43.

79 Id, art 44.

80 Id, art 45(d).

81 Convention on the Rights of Persons with Disabilities, arts 35–36.

82 Id, art 39.

83 Alston, P and Quinn, G “The nature and scope of state parties obligations under the International Covenant on Economic, Social and Cultural Rights” (1987) 9 Human Rights Quarterly 156CrossRefGoogle Scholar at 160–61.

84 MM Sepulveda The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (2003, Intersentia) at 74 and 77–87. She undertakes an extensive discussion, quoting several authors and decisions of the International Court of Justice, in particular the advisory opinion of 28 May 1951 on the reservation to the Convention on the Prevention and Punishment of the Crime of Genocide, which indicate the special nature of human rights treaties as treaties granting protection to individuals and groups who are not parties to the treaty but who nevertheless need protection.

85 Vienna Convention on the Law of Treaties, art 32.

86 Sepulveda The Nature of the Obligations, above at note 84 at 79. She quotes the European Court in Soering v United Kingdom 161 Eur Ct HR (ser A) (1989) where the court stated, at para 87, that: “In interpreting the Convention, regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms … thus the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.” She further discusses the need for an evolutive interpretation of human rights treaties, taking into account developments in international human rights law and in the context of present day conditions, basically adopting the “living instrument principle”. She refers (at 80) to the European Court case of Airey v Ireland 32 Eur Ct HR (ser A) (1979) where the court stated in relation to the European Convention on Human Rights, at para 26, that “the Convention must be interpreted in the light of present day conditions and it is designed to safeguard the individual in a real and practical way as regards those areas with which it deals”.

87 Sepulveda, id at 76.

88 CESCR Gen Comm No 9, paras 11 and 15; Gen Comm No 12, para 6; and Gen Comm No 14, para 11.

89 CESCR Gen Comm No 3, para 10.

90 Sepulveda The Nature of the Obligations, above at note 84 at 88; Craven The International Covenant, above at note 39 at 91.

91 See L Chenwi “Monitoring the progressive realisation of socio-economic rights: Lessons from the United Nations Committee on Economic, Social and Cultural Rights and the South African Constitutional Court” (2010) at 4–5 (on file with author); and Craven, id at 92. Both authors contend that the endorsement of the General Comments of the CESCR by ECOSOC and the UN General Assembly, where a number of state parties participate in the consideration of the committee's report, is a clear indication of acceptance of the interpretation given to the ICESCR provisions by the committee. See also Chowdhury “Judicial adherence”, above at note 42 at 5, who states that national courts have been known to draw from the CESCR's General Comments when they adopt the minimum core approach.

92 Sepulveda The Nature of the Obligations, above at note 84 at 88.

93 Alston and Quinn “The nature and scope”, above at note 83 at 171.

94 See the discussion of art 2(6) of the constitution in the “Introduction” to this article.

95 See CESCR Gen Comm No 12, para 33; Gen Comm No 14, para 60; Gen Comm No 15, para 57; and Gen Comm No 18, para 49.

96 Young Constituting Economic and Social Rights, above at note 45 at 78–79.

97 Id at 82–83. In its limitations role, the minimum core approach reverses the onus of proof in SER litigation, with the requirement that, once the claimant has shown that the minimum core of any particular right has not been protected, the onus reverts to the state to show either that it has put in place reasonable legislative measures within its available resources to realise the right in question, or to justify the reasonableness of its limitation of the right in question. In this way, the minimum core turns the SER paper rights into practical reality for claimants.

98 For the importance of adopting the minimum core obligations, see: Limburg Principles, above at note 60, principle 5; and Maastricht Guidelines, above at note 60, guideline 8. See also CESCR Gen Comm No 9, paras 3 and 15, which require states to interpret domestic legal provisions in a manner that gives credence to their international law obligations and discourages reliance on national laws to defeat international legal obligations.

99 See also 2010 Constitution, art 259(1) which calls for the provisions of the constitution to be construed in a manner that: promotes its purposes, values and principles; advances the rule of law and the fundamental rights in the Bill of Rights; permits the development of law; and contributes to good governance.

100 Id, art 21(3).

101 This article provides: “The purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.”

102 CESCR Gen Comm No 14, para 31; Gen Comm No 13, para 44; Gen Comm No 9, para 11; and Gen Comm No 3, para 9.

103 Government of the Republic of South Africa v Grootboom and Others 2001 (1) SA 46 (CC), paras 32–33.

104 See 2010 Constitution, art 21(1).

105 Liebenberg Socio-Economic Rights Adjudication, above at note 65 at 39–42.

106 See “The principles and guidelines”, above at note 58, which developed the minimum core obligations of the SERs entrenched in the African Charter in paras 17 (general), 59 (work), 67 (health), 71 (education), 79 (housing), 82 (social security), 86 (food), 92 (water and sanitation) and 97 (family life).

107 See generally Chapman and Russell (eds) Core Obligations, above at note 44; P Hunt Reclaiming Social Rights: International and Comparative Perspectives (1996, Dartmouth).

108 Requires Parliament to facilitate public participation and involvement in the legislative as well as other businesses of Parliament and its committees.

109 Requires county assemblies to facilitate public participation and involvement in the legislative as well as other businesses of the county assemblies.

110 Contains the principles of public finance which require openness and accountability, including public participation in financial matters.

111 Envisages public participation in the design of the policy and programmatic frameworks for the implementation of entrenched SERs.

112 S Liebenberg “The interpretation of socio-economic rights” in Woolman et al Constitutional Law of South Africa vol 2 (2nd ed, 2009, Juta) chap 33 at 42.

113 Kabui Mwai, above at note 26 at 6–7.

114 See id at 1–2.

115 Id at 2–4.

116 Id at 5.

117 Ibid.

118 Id at 6.

119 President of the Republic of South Africa and Another v Hugo (CCT11/96) 1997 (4) SA 1,  para 41; id at 8–9.

120 Kabui Mwai, id at 9. The court stated: “When the Constitution was adopted, the framers knew, and clearly had in mind, the different status of persons in the society and the need to protect the weak from being overrun by those with ability. They had in mind the history of this country, both the differences in endowment either by dint of the region where one came from or as a function of other factors, which might necessitate special protection. Rightly or wrongly, and it is not for the court to decide, the framers of the Constitution manifestly regarded as inadequate a blanket right to equal treatment, and their intention was to remedy the perceived societal inequalities thus recognising the necessity of corrective measures … It was out of the realisation that unequal people cannot be treated equally.”

121 Id at 10–11.

122 Arwa, JO “Litigating socio-economic rights in domestic courts: The Kenyan experience” (2013) 17 Law, Democracy and Development Journal 419Google Scholar at 435, available at: <http://www.saflii.org/za/journals/LDD/2013/20.pdf> (last accessed 13 June 2015).

123 Kabui Mwai, above at note 26 at 6.

124 Federation of Women Lawyers and 5 Others v Attorney General and Another (FIDA-K) High Court petition no 102 of 2011 at 47–48.

125 Id at 48.

126 [2014] eKLR.

127 Id, paras 7–14.

128 Id, para 62 (emphasis added).

129 Id, para 69.

130 Id, paras 72–73.

131 Mathew Okwanda v Minister of Health and Medical Services and 3 Others [2013] eKLR, para 21.

132 For example: Grootboom; Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) (TAC); and Mazibuko and Others v City of Johannesburg and Others (CCT 39/09) 2010 (3) BCLR 239 (CC). See Yeshanew, SA “Approaches to the justiciability of economic, social and cultural rights in the jurisprudence of the African Commission on Human and Peoples' Rights: Progress and perspectives” (2011) 11 African Human Rights Law Journal 317Google Scholar at 322.

133 Grootboom, paras 32–33.

134 Id, para 31.

135 Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC), para 24; Grootboom, para 95; TAC, para 32. The limiting of rights in this manner has been extensively criticized by several authors who argue that, even though these standards should of necessity limit the obligations of the state, they should not limit the meaning, nature, content and scope of SERs. See K McLean “Housing” in S Woolman et al (eds) Constitutional Law of South Africa vol 4 (2nd ed, 2006, Juta) 55-1, at 55-9 – 55-12; Bilchitz “Health”, above at note 62 at 56A-9 – 10, especially note 4. Bilchitz especially argues passionately for an independent determination of the content of rights, separate from the determination of the obligations of the state, which he avers are the ones limited by the availability of resources. He argues convincingly that the rationale for recognising fundamental rights is the need to protect inherent basic human interests, which people have by virtue of their human characteristics and not by virtue of the resources at their command. He avers that the available resources only affect the capacity of people to realise these inherent rights, and not the rights themselves. He thus contends that an understanding of the content of rights separate from the issue of resources, the approach which he advocates, makes it possible to expect the state to take measures to realise rights which are already present as soon as the problem of scarcity of resources is lessened: see Bilchitz Poverty and Fundamental Rights, above at note 39 at 40–42 and 215–20. See K McLean Constitutional Deference, Courts and Socio-Economic Rights in South Africa (2009) at 176–81 for similar arguments. McLean provides at (179–81) four reasons for adopting her preferred reading; the two critical ones are: first, that the jurisprudential soundness of having a right not restricted by the availability of resources enables the court to align its interpretation of the scope of SERs in accordance with international and comparative norms, and further requires the state to justify failures to realise SERs; and secondly, that it allows for a “wider socio-political understanding of rights as political or ethical claims against the State which stand, even where the State is not able to realise these rights fully”.

136 TAC, para 35.

137 Id, paras 37–38.

138 Grootboom, para 33; TAC, para 34. See also Liebenberg Socio-Economic Rights Adjudication, above at note 65 at 148–51 for a similar analysis.

139 Bilchitz Poverty and Fundamental Rights, above at note 39 at 208–13. At 212, however, he rejects lexical prioritization (the requirement that the minimum core must be fulfilled for all before maximal needs are attended to) and instead advocates weighted priorities, which require that, in instances where the minimum core cannot be fulfilled, the state must provide justifications for such failure, and that such justifications must be subjected to stringent scrutiny by the courts.

140 Id at 213.

141 See Liebenberg Socio-Economic Rights Adjudication, above at note 65 at 153; Steinberg, C “Can reasonableness protect the poor? A review of South Africa's socio-economic rights jurisprudence” (2006) 123 South African Law Journal 264Google Scholar at 280; McLean Constitutional Deference, above at note 135 at 182–83; Dixon, R “Creating dialogue about socio-economic rights: Strong v weak form judicial review revisited” (2007) 5 International Journal of Constitutional Law 391CrossRefGoogle Scholar at 416; Bilchitz, D “Giving socio-economic rights teeth: The minimum core and its importance” (2002) 118 South African Law Journal 484Google Scholar at 498–99; Bilchitz Poverty and Fundamental Rights, above at note 39 at 140–42. Bilchitz argues (at 144–46) that the Grootboom court would not have reached the decision it did without consideration of some level of minimum core, and undertakes an analysis to prove this point. To support this, he quotes from the Grootboom judgment at para 44 where the court held: “A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality.” He concludes (at 147–49) that, in adopting this reasoning, the court adopted the conception of “dignity as integrity” a conception of dignity which supports the adoption of the minimum core content of SERs.

142 Grootboom, para 44.

143 Ibid.

144 Id, para 83.

145 See Young Constituting Economic and Social Rights, above at note 45 at 84–85, where she affirms that the SACC has chosen to place the minimum core under the general purview of the reasonableness approach and uses it as one of the factors to assess the reasonableness of the state's measures aimed at the realisation of SERs.

146 See id at 196–98, where Young contends that, due to the “social State rule of law” vision of the 1991 Colombian Constitution, the CCC has not understood its role in relation to the separation of powers doctrine, but in terms of a substantive constitutional vision of the normative importance of rights and the special role that the constitution accords judicial officers in enhancing the realisation of rights.

147 Chowdhury “Judicial adherence”, above at note 42 at 7–8, affirms that the CCC has adopted and uses the minimum core approach as expounded by the CESCR. He cites some of the cases dealing with housing and health where the court has categorically applied the minimum core content approach, including: CCC decision, T-859, 2003; CCC decision, T-025, 2004; and CCC decision, T-585, 2006.

148 M Sepulveda “The Constitutional Court's role in addressing social injustice” in M Langford (ed) Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (2009, Cambridge University Press) 144 at 148.

149 D Landau “The promise of a minimum core approach: The Colombian model for judicial review of austerity measures” in A Nolan (ed) Economic and Social Rights after the Global Financial Crisis (2014, Cambridge University Press) 267 at 270.

150 A tutela is an innovative writ of protection of fundamental rights enshrined in art 86 of the Colombian Constitution; it can be filed by any person whose fundamental rights are threatened or violated and requires immediate protection. It entails a summary proceeding with the judge obliged to provide a resolution within ten days of a writ being filed. See Sepulveda “The Constitutional Court's role”, above at note 148 at 146.

151 Landau, D “The reality of social rights enforcement” (2012) 53 Harvard International Law Journal 401Google Scholar at 420.

152 CCC Decision T-760 of 2008, discussed in Olaya, MA “The right to health as a fundamental and judicially enforceable right in Colombia” (2009) 10(4) ESR Review at 16–17Google Scholar, available at: <http://reference.sabinet.co.za/webx/access/electronic_journals/esrrev/esrrev_v10_n4_a6.pdf>  (last accessed 13 June 2015); AE Yamin and OP Vera “How Do Courts Set Health Policy? The case of the Colombian Constitutional Court” (17 February 2009) at 1–4, available at: <http://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1000032> (last accessed 13 June 2015).

153 Yamin and Vera argue (id at 3) that, in adopting the health jurisprudence of the CESCR, the court: (i) elaborated on the multiple dimensions of state obligations on the right to health, and the importance of monitoring and oversight to enhance protection and accountability; and (ii) reiterated the state's responsibility to adopt deliberate measures to achieve progressive realisation and the impermissibility of retrogression, as well as the importance of transparency, access to information and public participation in the realisation of the right to health.

154 Id at 3–4; Chowdhury “Judicial adherence”, above at note 42 at 8; Olaya “The right to health”, above at note 152 at 16–17.  Olaya's analysis of the court's minimum core reasoning indicates that the court acknowledged that: the right to health has both positive (which require resources to implement) and negative (which require state abstention) obligations; enforceability of positive obligations (as the vital minimum) depended on their urgency and the impact on human dignity of their non-implementation; and non-implementation of positive obligations which did not have an adverse impact on human dignity was subject to progressive realisation.

155 Yamin and Vera, id at 2.

156 Sentence T-025/04; this judgment was the outcome of the aggregation of 1,150 constitutional complaints (tutelas) by IDPs.

157 Rodriguez-Garavito, C “Beyond the courtroom: The impact of judicial activism on socio-economic rights in Latin America” (2010–11) 89 Texas Law Review 1669Google Scholar at 1682 and 1693.

158 Id at 1686. He remarks however (at 1687) that, due to the high number of IDPs, with over 5 million IDPs in the last 25 years and 280,000 IDPs in 2010 alone, access to the other SERs has been unsatisfactory, with 98% of IDPs living in poverty and only 5.5% having adequate housing.

159 See amicus brief to case C-376/10 of 2010, prepared by The Cornell International Human Rights Clinic, Robert F Kennedy Centre for Justice and Human Rights, and Association NOMADESC (November 2009) at 1, available at: <http://www.escr-net.org/usr_doc/Amicus-Brief-w-Annexes-Report-ENG-FINAL.pdf> (last accessed 6 April 2012).

160 See CCC decision C-376/10, available at: <http://www.escr-net.org/caselaw/caselaw_show.htm?doc_id=1407210> (last accessed 6 April 2012).

161 Cepeda-Espinoza, MJ “Transcript: Social and economic rights and the Colombian Constitutional Court” (2010–11) 89 Texas Law Review 1699Google Scholar at 1702–03.

162 Ibid. Transparent rights-based rationality, which requires the state to define objectives, rationalize means to objectives, develop policies and regulations aimed at the fulfilment of objectives and to build institutional capacity to enhance the achievement of objectives, can also be said to form part of the substantive aspect of the approach.

163 Id at 1703.