One study on NGOs in East African countries suggests that NGOs have a comparative advantage with respect state governments in the realm of service delivery when, among other things, "their work is with groups considered to be 'illegal' or 'victims' and not recognizable by the state – examples would be squatters, street children and petty traders."188 Moreover, NGOs are said to be better than the governments at providing services that are "innovative or tailored to local circumstances."189For example, NGOs supported secondary education in Kenya in the '70s and '80s by equipping eight state schools with computers.190 Similarly, a Kenyan NGO provided a compact, tailored, flexible and relevant educational curriculum for indi-

187 Robinson and White 82.

184 See Bevan.

185 See *Managing Risk, Promoting Growth: Developing Systems for Social Protection in Africa,* World Bank, (2012) 47 <https://openknowledge.worldbank.org/handle/1 0986/23744>.

186 See ibid 47-48.

188 Alan Fowler, 'NGOs & the Globalization of Social Welfare: Perspectives from East Africa' in Ole Therklindsen and Joseph Semboja (eds), *Service Provision under Stress in East Africa: The State, NGOs & People's Organizations in Kenya, Tanzania & Uganda* (Centre for Development Research 1995), 63.

189 Ibid.

190 B. M. Makau, 'Dynamics of Partnership in the Provision of General Education in Kenya' in Ole Therklindsen and Joseph Semboja (eds), *Service Provision under*

gent urban children, which was meant to equip them with "practical skills (e.g., carpentry, crafts, and tailoring), basic literacy, and social skills."191

Consider the provision of health care services in Africa, and the significant role of NGOs therein. One reason that NGOs are particularly important in this regard is that public health care is severely underdeveloped across the continent. One analyst describes the situation in the following way:

In many African countries the quality of government health facilities is often very poor, coverage is limited, technical capacity is inadequate, decision-making is over centralized, and service provision is plagued by inefficiencies and petty corruption.192

Likewise, in *Purohit and Moore v. The Gambia*, the African Commission recognized the overwhelming obstacles that African states face in fulling the very basic needs of African people. Commenting on what it calls a "depressing but real state of affairs", the Commission notes that it is:

… aware that millions of people in Africa are not enjoying the right to health maximally because African countries are generally faced with the problem of poverty which renders them incapable to provide the necessary amenities, infrastructure and resources that facilitate the full enjoyment of this right.193

NGOs play a significant role in the health sector by functioning primarily in the areas of service delivery and health advocacy.194 This is especially the case in low-income countries and middle-income countries, where NGOs are mostly engaged in delivering services, raising awareness and campaigning about disease prevention.195 International NGOs respond to global health problems with projects such as vaccination programs and emergency response; they also tend to engage in the establishment of health services and hospitals in developing countries.196

*Stress in East Africa: The State, NGOs & People's Organizations in Kenya, Tanzania & Uganda* (Centre for Development Research 1995) 87, 95-96.

191 Ibid 96.

192 Robinson and White 82.

193 *Purohit and Moore v. Gambia*, 241/01 (ACmHPR 2003) para. 84.

194 Maria Piotrowicz and Dorota Cianciara, 'The Role of Non-Governmental Organizations in the Social and the Health System' 67 Przeglad Epidemiologiczny 69 (2013) 71.

195 Ibid.

196 Ibid 72.

Regarding the provision of health care services in particular, community-based NGOs can provide localized interventions, which are particularly important to ensure timely access to essential health care. In 2007, the World Health Organization (WHO) Regional Office for Africa held a panel discussion on the role of the community in improving maternal, newborn and child health (MNCH) within the region. Emphasizing the need for localized health care services, panel participants reported that "Mothers and children continue to die due to the triple delays in *seeking* appropriate care, *reaching* the health facility and *receiving* the appropriate management at the facility."197 The report referred to "community empowerment, participation and ownership of community-based interventions" as being "essential for increased utilization and access to services", and called for the "involvement of the community in the planning, implementing and monitoring of community-based health services." 198

Noting that access to affordable and accessible health services remained a challenge in Africa, panel participants highlighted the importance of foreign funding. They stated that although community-based programs are essential to MNCH programs, domestic financing of health services for mothers and children was inadequate precisely at the community level, which rendered community-based programs dependent upon external funding.199 Moreover, panel participants emphasized the important contribution of NGOs to MNCH. They indicated that "Nongovernmental organizations working through government structures can play a major role in advocacy and implementation of MNCH programs through capacity building, including institutional strengthening."200 In summary, the participants of the WHO African Region panel confirmed the vital role of foreign funding, community based services, and NGO communities that work in concert with African governments. The report did not call for tightening NGO operations or severing their ties to foreign funding in health care services. Rather, the report of the panel recommended that

197 The Role of the Community in Improving Maternal, Newborn and Child Health in the Who Africa Region, Regional Committee for Africa, World Health Organization, AFR/RC57/16 (b) (UN 2007) 1 <http://www.afro.who.int/ sites/default/files/sessions/working\_documents/AFR-RC57-16b%20REPORT%2 0OF%20THE%20PANEL%20DISCUSSION%20-%20FINAL.pdf> (emphasis in original).

198 Ibid.

199 Ibid 2.

200 Ibid.

"Partnerships at national and global levels should be strengthened to ensure adequate resources for MNCH." 201

Finally, if they manage to establish and maintain a collaborative relationship with government, NGOs can enhance performance of and access to existing public services. First, they can expand the availability of resources and audit the quality of public services.202 Second, NGOs can act a bridge between informal and formal services, thereby promoting the formalization process. Poor and vulnerable communities in LDCs typically rely on informal social protection schemes due to the inaccessibility or unavailability of formal services. NGOs activities can be critical in this regard by helping these communities to access semi-formal and then formal systems of protection.203 As with all their other contributions, they do this through a variety of strategies including community empowerment, political advocacy and involving themselves in the provision of services.

#### NGOs in Sub-Saharan Africa 2.2.2.

It is difficult to know the exact number of NGOs that operate in sub-Saharan Africa today.204 However, writers have noted their remarkable growth during the post-independence period. 205 Instead of attempting the notoriously difficult task of quantifying NGOs in Africa, this section will provide a brief view into their emergence and relationship with governments. The

201 Ibid 3.

202 Tayo O. George and others, 'Effective Service Delivery of Nigeria's Public Primary Education: The Role of Non-State Actors' 15 Journal of African Development 221 (2013) (although these authors also considered corporate bodies in their study, their findings appear to be equally applicable to nonprofit providers.).

203 Edward Mac Abbey, 'Constructive Regulation of Non-Governmental Organizations' 48 The Quarterly Review of Economics and Finance 370 (2008) 372.

204 One international directory of development organizations estimates that civil society organizations have approximately 8600 offices and that international organizations have 1600 offices in Africa (including North Africa), however the directory collects most of its contacts through voluntarily self-reporting. (*Directory of Development Organizations: Resource Guide to Development Organizations and the Internet,* (vol Africa 10th edn, 2010) <https://www.ecoi.net/file\_upload/1 002\_1264767399\_uganda.PDF & https://www.ecoi.net/file\_upload/1002\_12647 08453\_botswana.PDF>.).

205 See Michael Bratton, 'The Politics of Government-NGO Relations in Africa' 17 World Development 569 (1989) 571; Jenkins (2012) 469-474.

following pages begin by summarizing the historical origins of NGOs in Africa as well as the political and economic context of their subsequent rise to prominence. This prefaces a discussion on the relationship between NGOs and governments as well as some of the criticism lodged against NGOs. These pages are meant not to serve as a comprehensive historical record of NGOs in Africa, or to capture fully the deep and complex dynamics of NGO-government tensions. Rather, it offers a brief overview of certain political and historical aspects in order to provide a contextualized understanding of the rise in recent years of restrictive NGO regulations.

### History of Associational Life and Non-State Service Provision in Africa <IP_ADDRESS>.

The history of associational life in general is very long.206 Social provisioning by non-governmental actors is also not new.207 In Africa, there is a long history of nongovernmental forms of organized social welfare, mainly through extended family networks and civil society. 208 For example, lineage funds of pre-colonial times speak to this heritage. Historians note that these were "corporately owned" funds that were financed by members of a lineage in order "to insure lineage members against enslavement and to use in other crises, especially famine and illness."209 Likewise, secret societies in parts of West Africa served the function of ensuring the provision of general education and various social services including medical treatment.210

During the colonial era, Africans were systematically marginalized within or excluded from the political and economic spheres, and were subjected to racial discrimination in the social service sector.211 Associational life

206 One anthropologist dates formal common interest associations back to at least the Neolithic era. (Robert T. Anderson, 'Voluntary Associations in History' 73 American Anthropologist 209 (1971).).

207 Cammett and MacLean note that "[m]any NSPs [non-state service providers] were established long ago and have extensive institutional legacies." As an example, they point out that there have been faith-based organizations present Tanzania since at least the colonial period. (Cammett and MacLean, 'Introduction' 14.).

208 Bratton (1989) 'The Politics of Government-NGO Relations in Africa' 570-571.

209 Philip Curtin and others, *African History* (Little Brown 1978) 568.

210 Kenneth L. Little, 'The Role of the Secret Society in Cultural Specialization' 51 American Anthropologist 199 (1949).

211 Bratton (1989) 'The Politics of Government-NGO Relations in Africa' 570-571.

– being suppressed within the political sphere – was predominantly engaged in the provision of social services.212 A significant contribution of voluntary associations was to promote social welfare for Africans, who were systematically marginalized by the colonial state.

Within the advent of urbanization, larger cities saw the blossoming of social groups around kinship ties into "home-town" or "village" associations.213 Newcomers from the countryside sought out such ascriptivebased associations for social support in larger cities.214 Many of these groups served primarily to promote the social and economic wellbeing of their members.215 They provided members with financial assistance for the cost of medical care and other social expenses.216 Many also financed the development of their ancestral regions by building schools, clinics and other public structures that promoted social protection, such as water systems and roads.217

Voluntary associations also used political advocacy to enhance the socioeconomic wellbeing of their members. As members grew discontent with colonial rule, some associations pushed for greater political participation by black Africans.218 During the Great Depression of the 1920s and 1930s, organized economic strikes spread across colonized African societies.219 These strikes targeted the entire colonial system as a whole, thereby pressuring colonial authorities to begin investing in economic and social development.220 As a result, public investments were made into education and

220 *Encyclopedia of Twentieth-Century African History* 96.

212 Livingstone Sewanyana, *Comparative Experiences of NGO Regulatory Frameworks: Eastern and Southern Africa* (Verlag Dr. Kovac 2017) 170-173.

213 Kenneth L. Little, 'The Organisation of Voluntary Associations in West Africa / Les Associations Volontaires En Afrique Occidentale' 9 Civilisations 283 (1959).

214 Blessing Mberu, Donatien Béguy and Alex C. Ezeh, 'Internal Migration, Urbanization and Slumbs in Sub-Saharan Africa' in Hans Groth and John F. May (eds), *Africa's Population: In Search of a Demographic Dividend* (Springer 2017) 315-332, 317.

215 (2003) *Encyclopedia of Twentieth-Century African History* (Paul Tiyambe Zeleza and Dickson Eyoh eds, Routledge 2003) 96.

216 Ibid ; Little (1959) 'The Organisation of Voluntary Associations in West Africa / Les Associations Volontaires En Afrique Occidentale'.

217 *Encyclopedia of Twentieth-Century African History* 96 ; Dwayne Woods, 'Elites, Ethnicity, and 'Home Town' Associations in the Côte D'ivoire: An Historical Analysisof State-Society Links' 64 Africa: Journal of International African Institute 465 (1994) 471-472.

218 *Encyclopedia of Twentieth-Century African History* 96.

219 Ibid ; see also Curtin and others (1978) 577-579.

other areas of social protection.221 Colonial welfare and development laws emerged in order increase social expenditures on welfare and to expand associational life.222

Such an active and critical third sector clearly posed a threat to the efficient execution of colonial projects. Not surprisingly, colonial authorities encouraged the formalization of associations to keep them under state control,223 and rendered them 'legible' to authorities.224 Consider the example of Angola under Portuguese rule. Angolans living under the colonial rule of the Portugal began forming political associations in the 20th century and sought to improve the lives of Angolans.  One historian notes that the government viewed this as "a threat from the 'nativist movement' in Angola".225 In 1935, Portugal began requiring registration of all associations in all of its territories, which included colonial territories in Africa, in order to dissuade and criminalize what its lawmakers deemed to be "secretive" organizations.226 These earlier associational laws were in many ways the precursors of today's NGO laws in Africa: they typically limited associations to service-based operations—prohibiting political involvement and kept associations under tight state supervision.227Colonial powers formalized, or 'legitimized', civil society by way of legal and institutional mechanisms that imposed registration and operational requirements and monitored compliance.

221 Ibid 96-97; Sewanyana (2017) 172-173 ; see also Bratton (1994) Institute for Development Research, *Civil Society and Political Transition in Africa* 10 ("While liberalization may occur at the initiative of a progressive faction that splits the state elite, more commonly it is a response to escalating economic protest…").

222 Sewanyana (2017) 172-173.

223 See Peter 312-315 (Until 2002, Tanzania relied on colonial-era legislation to impose registration requirements on NGOs. That same law was used by British colonialists to restrain civil society organizations that challenged the colonial regime in Tanzania.).

224 James Scott posits that states standardize and regularize social practices that are otherwise 'illegible' and exceptionally complex for officials to keep track of and to regulate. (James C. Scott, *Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed* (Yale University Press 1998).).

225 Ronald H. Chilcote (ed), *Protest and Resistance in Angola and Brazil: Comparative Studies* (University of California Press 1972) 74.

226 Associações Secretas, Lei No 1901 (Portugal 1935).

227 *Encyclopedia of Twentieth-Century African History* 97; Sewanyana (2017) 173-174.

William Olsen has studied similar phenomena involving the colonial regulation and registration of traditional medicinal practices of African societies.228 From these observations, he concludes that the practice of regulating civil society in Africa may have emerged as an adaptive state measure to achieve the unchanged colonial objective of disciplining and controlling indigenous subjects. Olsen writes, "…in the nearly 40 years of colonial engagement with witchcraft and witch-finding movements, the British changed the content of their 'official' orientation towards these practices but their purposes of regulation and discipline remained intact."229

Threats to African associational life did not end with colonialism. Voluntary associations were once again under attack after the end of colonial rule, but this time from African regimes.230 Recounting the historical relationship between voluntary associations and the state primarily in Côte d'Ivoire, Dwayne Woods writes,

Following independence, Africa's ruling elites sought to suppress all forms of ethnic affiliation and independent associational activity. They justified their actions on the basis that tribalism and ethnicity were detrimental to national unity and economic development. In the Côte d'Ivoire the Parti Démocratique de la Côte d'Ivoire (PDCI) served one function—namely the suppression of all independent associational life... Simply put, the party served as an instrument for President Felix Houphouet-Boigny to limit participation, especially participation based on ethnic ties. A similar process of restricting political input from social groups occurred elsewhere in Africa…231

Non-governmental associations in Africa have taken form as professional associations, ethnic welfare groups and churches.232 But it was not until the rise of foreign aid in the 1980s that NGOs proliferated across the continent in their modern form as institutionalized, foreign-funded organizations that had strong international ties and took on a significant role in humanitarian assistance and social welfare.

228 William C. Olsen, 'The Empire Strikes Back: Colonial "Discipline" and the Creation of Civil Society in Asante' 30 History in Africa 223 (2003).

229 Ibid 226.

230 Bratton (1994) Institute for Development Research, *Civil Society and Political Transition in Africa* 5.

231 Woods (1994) 466 (internal citations ommitted) (Woods notes, however, that despite these challenges, associations managed to survive.).

232 Bratton (1989) 570-571.

#### The Rise of Foreign-Backed NGOs <IP_ADDRESS>.

Africa, along with the rest of the world, saw a sharp growth in NGOs during the late 1980s and 1990s, leading one third-sector scholar to declare that time as the beginning of an "associational revolution [that] may prove as significant as the rise of the nation-state."233 Consider their rise in East Africa. According to one account, there were more than 400 NGOs in Kenya alone by the late 1980s, which is nearly a fourfold increase from the 125 NGOs that were there in 1974. 234 By another account, Kenya is believed to have had 4,000 NGOs by the year 2000, and 6,000 NGOs by 2010.235 Similarly, the number of NGOs in Ghana increased from 80 in 1980, to 700 in 1990, to 1,300 in 2000, and finally to 4,772 in 2010.236 Tanzania also experienced an extraordinary rise in NGOs from 25 in 1980 to over 5000 NGOs in 2010.237 The proliferation of NGOs was observed in other continents as well.238 In addition to their growing numbers, NGOs were significant in terms of their mobilization of resources. By 1992, international assistance to developing countries that came either from or through NGOs amounted to \$8 billion, which represented 13 % of all development assistance, and amounted to more than the UN's contribution to development assistance for the same period.239

On a global scale, the world saw a dramatic growth in NGOs during the 1990s.240 To explain this NGO-boom, scholars point to cultural and political shifts in the 1980s that changed the conditions within which NGOs operated. First, donor countries from the "global north" that championed neoliberal ideologies common in western societies advanced democracy aid campaigns by promoting NGOs in the developing world.241 Democracy aid campaigns were based on the notion that a strong and active civil society would enhance democratic governance, and northern donor countries tried to accomplish that goal by pumping funding into NGOs.

Second, the advancement of structural adjustment programs through neoliberal pro-market policies backed by international financial institu-

233 Salamon (1994) 114.

234 Bratton (1989) 571.

235 Cammett and MacLean (2014) 'Introduction' 8.

236 Ibid.

237 Ibid.

238 Ibid.

239 P. J. Simmons, 'Learning to Live with NGOs' 112 Foreign Policy 82 (1998) 87.

240 Jenkins (2012) 472-474.

241 Ibid 474-477.

tions led to massive cuts in public social spending within developing countries, thereby creating the opportunity for NGOs to expand within the social service sector. 242 By the 1980s, official funding for development aid (that is, direct funding to governments) declined, thus the space for nonstate social provisioning steadily widened.243 Structural adjustment programs ultimately failed to lift people in developing countries out of poverty and eventually came under scrutiny before they were finally abandoned. 244 But by then, the NGOs were already there.

Meanwhile, neoliberal aid packages had urged developing countries toward decentralized models of governance, thus burdening local levels of government with the task of financing and delivering social welfare services.245 This incentivized local governments to "contract out" their services to NGOs.246 In some areas, decentralization went even further than the level of local government. In 1994, the World Bank reported that it had "increasingly used nongovernmental organizations (NGOs) in the delivery of services," and that "in several countries, public works agencies [had] been set up with Bank encouragement *outside the structure of government* to manage and implement public works".247 Today, it is not uncommon for nonprofits to be the only service providers available to certain segments of the population.248

As social indicators worsened and public services diminished, NGOs flourished to fill remaining gaps in social protection.249 They have become rather important for vulnerable and marginalized groups. The U.N. Committee on Economic, Social and Cultural Rights (ESCR Committee) has

242 Ibid; Helmut K. Anheier and Lester M. Salamon, 'The Nonprofit Sector in Comparative Perspective' in Walter W. Powell and Richard Steinberg (eds), *The Nonprofit Sector: A Research Handbook* (2nd edn, Yale University Press 2006) 89-114, 92-93.

243 See Jenkins (2012) 476-477.

244 See ibid.

245 Cammett and MacLean, 'Introduction' 13.

246 Ibid 13, n. 10.

247 Mike Stevens and others, *Governance: The World Bank's Experience,* World Bank, (1994) 20 <http://documents.worldbank.org/curated/en/711471468765285964/p df/multi0page.pdf> (emphasis added).

248 E.g., Concluding Observations on the Initial and Second Period Report of Djibouti, Committee on Economic, Social and Cultural Rights, UN Doc. E/ C.12/DJI/CO/1-2 (UN 2013) para. 22 (noting that a large number of children in Djibouti live and work in the streets; regretting that "their care is managed entirely by civil society organizations, whose capacity is limited.").

249 See Jenkins (2012) 476-477.

also recognized their importance in this regard on at least two occasions. First, when it insisted that "States parties should respect and protect the work of human rights advocates and other members of civil society who assist vulnerable groups in the realization of their right to adequate food."250 And second, when it noted that "States parties should respect, protect, facilitate and promote the work of human rights advocates and other members of civil society with a view to assisting vulnerable or marginalized groups in the realization of their right to health."251

As nonprofit sectors in developing countries expanded to fill protection gaps, Northern donors have been there to continue supporting their growth with foreign funding.252According to one commentator, NGOs in the 1980s were receiving 22% of total aid funds.253 During the same period, the growth rate for donor-to-NGO funding was almost five-folds that of total overseas development aid to governments of developing countries.254 While some understood that a shift in donor funding had occurred, for many there was "a dawning realization" by the late 1980s "that a greater share of North-South resource transfers pass[ed] through NGOs than [was] commonly realized."255

Today foreign funding remains a significant and vital source of financial resources for NGOs in Africa.256 While it is difficult to find comprehensive data on the share of NGOs' resources that come from foreign donors, existing evidence on a few sub-Saharan African countries suggests that NGOs' reliance on foreign funds, rather than household or government resources, is quite substantial. By one estimate, NGOs in Kenya (over 90% of which focus on service provision) receive 91% of their revenues from international sources, while 8% comes from private sources and only 1% from the

250 General Comment No. 12: The Right to Adequate Food, Committee on Economic Social and Cultural Rights, U.N. Doc. E/C.12/1999/5 (UN 1999) para. 35.

251 General Comment No. 14: The Right to the Highest Attainable Standard of Health (2000) para. 62.

252 See Jenkins (2012) 476-477.

253 Tim Brodhead, 'NGOs: In One Year, out the Other?' 15 World Development 1 (1987) 1.

254 Ole Therklindsen and Joseph Semboja, 'A New Look at Service Provision in East Africa' in Ole Therklindsen and Joseph Semboja (eds), *Service Provision under Stress in East Africa: The State, NGOs & People's Organizations in Kenya, Tanzania & Uganda* (Centre for Development Research 1995) 17.

255 Brodhead (1987) 1.

256 Bratton (1994) Institute for Development Research, *Civil Society and Political Transition in Africa* 8.

Kenyan government.257 In Mozambique, it is estimated that foreign funding accounted for 71% of revenues collected by the nonprofit sector in 2003, while membership fees and service fees collected from private enterprises and households amounted to 10.7% and government subsidies and contracts made up only 3% of total revenues.258 For all nonprofit organizations in Cameroon that worked in the social, health, education, housing and development sectors, contributions from foreign sources or other nonprofit organizations amounted to 67% of 2011 revenues, while only 17% came from households and 8% came from the government.259

Evidence is also available on the share of foreign aid directed toward NGOs worldwide. The OECD reports that in 2011, over \$19 billion (or 14.4%) of official development assistance from OECD countries was channeled through NGOs worldwide, with \$1.1 billion going to and through NGOs based in developing countries.260 Social infrastructure and services has been a priority for foreign donors. It is the main sector through which Oversees Development Aid (ODA) is channeled through NGOs. Fifty-one per cent (or \$9 billion) of bilateral ODA was directed toward NGOs working in this sector,261 and at least 24% of all ODA channeled through NGOs in 2011 was dedicated to health, education, water supply and sanitation, other social infrastructures and services, and food aid.262

#### Governments Restricting NGOs <IP_ADDRESS>.

African governments and intellectuals also noticed the growth of NGOs, as their resources were significant in size. In Kenya, for example, NGO re-

257 Brass (2012) 'Blurring Boundaries: The Integration of NGOs into Governance in Kenya' 210 & 216.

258 Saide Dade, *The Dimension of NPI in Mozambique: A Satellite Account Perspective,* (2009) table 8 <http://ccss.jhu.edu/wp-content/uploads/downloads/2011/10/Moz ambique\_SatelliteAccount\_2009.pdf>.

259 Author's own calculations of percentages from a data reported by the Cameroonian government (*Compte Satellite Des Institutions Sans but Lucratif: De L'année 2011,* Institut National de la Statistique (2014) table 3.1 <http://ccss.jhu.edu/wpcontent/uploads/downloads/2015/01/Cameroon\_SatelliteAccount\_2014.pdf>.).

260 *Aid at a Glance: Flows of Official Development Assistance to and through Civil Society Organizations in 2011,* Organization for Economic Cooperation and Development, (2013) 3 <http://www.oecd.org/dac/peer-reviews/Aid%20for%20CSOs%20 Final%20for%20WEB.pdf>.

261 Ibid 10.

262 Ibid 14.

sources between 1980 and 1990 amounted to 31% of government expenditure on education, health, labor and social welfare.263 Governments grew weary of NGOs as they continued to receive funds that might have otherwise supported government projects.264 One Africanist scholar insisted that an anti-state stance among donors "was the real push behind the upsurge in NGO activity."265 Governments across the continent started to pass laws that placed restrictions on foreign aid to NGOs. Proponents of today's restrictive NGO laws continue to express a similar disenchantment and mistrust of the alliance between NGOs and their Northern donors,266 often recasting the NGO-boom as a political takeover or bombardment by what one Zimbabwean official has referred to as "non-*governable* organisations".267

African states that seek to control or direct the nonprofit sector are not likely to do so through financial incentives due to their own financial limitations and due to the fact that NGOs typically rely on foreign funding. Thus, states will likely resort to regulatory and legislative means, despite their limited capacity to do so. Kendra Dupuy *et al* find that in low and medium-income countries, a growing inflow of foreign funding is associated with heighted restrictions on foreign funding to NGOs.268 Paradoxically, this indicates it is governments with the greatest need for foreign assistance that are restricting foreign aid flows.269 Dupuy *et al* explain that when governments believe internationally funded NGOs are enabling or empowering political opposition, they will risk economic and reputational

263 Fowler (1995) 61.

264 Jephias Mapuva and Loveness Muyengwa-Mapuva, 'A Critique of the Key Legislative Framework Guiding Civil Liberties in Zimbabwe' 15 Potchefstroom Electronic Law Journal 125 (2012) 128.

265 Shivji (2006) 39.

266 A general mistrust of the global North among independent African states predates the emergence of NGOs in Africa. Historians of the 1970s noted "a general fear of 'neocolonialism'" among African states, which included the belief that – despite their independence from colonial rule – industrialized nations still controlled African economic life through direct means of political intervention as well as through indirect means. (Curtin and others (1978) 541.).

267 Staff Reporter, '29 NGOs Banned in Crackdown' *New Zimbabwe* (14 Feb 2012) <http://www.newzimbabwe.com/news-7189-29+NGOs+banned+in+crackdown/ news.aspx> (emphasis added) (quoting Governor of Masivingo, Titus Maluleke, after the sudden de-registration of 29 NGOs in Zimbabwe).

268 Dupuy, Ron and Prakash (2016).

269 Ibid.

harm in order to secure themselves against threats to their political survival; this is especially the case after nationally competitive elections.270

Consider the recent example of South Sudan as a prototypical scenario in which tensions between NGOs and government have led to tightening controls on NGOs in low-income countries. Not long after its independence from Sudan in 2011, the new state of South Sudan found itself in a dire situation. By May 2016, public services were collapsing. The country's largest public hospital had experienced weeklong power outages, shortages of medical supplies, essential drugs, oxygen supplies and water.271 Women were giving birth by candlelight, and patients in need of surgery were being turned away. The government had not paid its medical staff for months, and hospitals did not have enough fuel for their generators. Similarly, the educational system suffered from inadequate support.272 Public university professors went on strike because they had not been paid their salaries for months, and half of the children in South Sudan were out of school.

One explanation for the collapse in public social services was a reduction in oil revenue, which was caused by falling oil prices and declining oil production.273 Since South Sudan relies mostly on oil revenues, the government's financial capacity to meet social needs had severely diminished. The financial problem was compounded by an armed internal conflict that began in December 2013, which necessitated high military expenditure and resulted in a humanitarian crisis.274 The government was unable to organize and provide even minimal social protection. Private providers of social services, including NGOs, UN Agencies and community-based organizations, tried to fill the protection gap. Officials felt that nonprofit actors with foreign ties posed a threat to the state's newfound independence. As

270 Ibid 300.

271 Jason Patinkin, 'It's Like Florence Nightingale's Time': South Sudan's Public Services Collapse' *The Guardian* (27 May 2016) <http://www.theguardian.com/gl obal-development/2016/may/27/south-sudan-public-services-collapse-juba-teachi ng-hospital-like-florence-nightingale-time>.

272 Ibid.

273 See 'South Sudan Oil Revenue at \$3.38 Bln, Hit by Conflict and Price Falls' *Reuters* (3 Jan. 2015) <http://www.reuters.com/article/southsudan-crude-idUSL6 N0UI02D20150103>.

274 Jacey Fortin, 'Power Struggles Stall South Sudan's Recovery' *New York Times* (31 May 2016) <http://www.nytimes.com/2016/05/31/world/africa/south-sudan-stru ggles-to-collect-taxes-after-years-of-war.html>.

tensions grew between the third sector and the state, the South Sudanese government tried to control NGOs through legislation.

In 2015, aid agencies feared that certain provisions of an NGO bill that was proposed in 2013 and approved by parliament in May 2015 would "not regulate NGO operations, but rather hinder their ability to serve South Sudanese people at a time when needs are escalating".275 The bill prohibited foreigners from constituting more than 20 percent of an NGO's staff.276 One government official stated that the law is intended to ensure that more jobs are given to South Sudanese workers. He accused NGOs of employing too many foreigners and warned that their registration would be denied if they did not employ nationals.277 The minister of Justice, Paulino Wnanawilla, complained that NGOs were uncooperative and ignored the government's efforts to coordinate services. The minister explained, "There is no country where you have free lunch; you go and you do business as you want… You cannot operate in a country under your own conditions." The bill was signed into law in February 2016 along with another act that widens the government's power to monitor NGOs. These new acts are the Non-Governmental Organizations Act of 2016 and the Relief and Rehabilitation Commission Act of 2016.278

Restrictive NGO laws have appeared in other parts of Africa as well. Uganda's NGO Registration Act (2009) required NGOs to provide the government with a written notice of their intention to make direct contact with people within their operational area at least one week prior to doing so. 279 NGOs, including those that were wholly owned and operated by Ugandans, could operate only within the particular geographic area that

275 See 'South Sudan Risks 'Catastrophe' with New Aid Agency Law, Warn NGOs' *The Guardian* (14 May 2015) <http://www.theguardian.com/global-development /2015/may/14/south-sudan-aid-agency-law-risks-catastrophe-warn-ngos>.

276 See 'S. Sudan Parliament Passes NGOs Bill, Gives Requirements for Relief Agencies' *Sudan Tribune* (12 Mar. 2015) <http://www.sudantribune.com/spip.ph p?article54953>; 'South Sudan Risks 'Catastrophe' with New Aid Agency Law, Warn NGOs' (2015).

277 'S. Sudan Parliament Passes NGOs Bill, Gives Requirements for Relief Agencies' (2015).

278 'South Sudanese President Signs NGO Bill into Law' *Sudan Tribune* (11 Feb. 2016) <http://sudantribune.com/spip.php?article57988> ; 'South Sudan Tables NGOs Bill for the Second Time' *Sudan Tribune* (20 Jan. 2016) <http://www.suda ntribune.com/spip.php?article57749>.

279 The Non-Governmental Organisations Registration Regulations, 2017 No. 22 (Uganda 2017).

the government had authorized for them.280 Moreover, the law rather vaguely proscribed NGO activities that were "prejudicial" to the "security of Uganda" or to the "interests of Uganda and the dignity of the people of Uganda".281 Likewise, it allowed government to involuntarily dissolve NGOs for failure to comply with its provisions, and broadly "for any other reason the [National] Board [of Non-Governmental Organisations] considers necessary in the public interest."282 The terms "public interest", "security of Uganda", "interests of Uganda" and "dignity of the people" were left undefined by the NGO law. Uganda enacted a new NGO law in 2016 and new NGO regulations in 2017 that maintain many of these features, including burdensome registration requirements and the imposition of criminal sanctions for violations.283

#### *Conclusion 2.3.*

Since their rise in the 1980s, NGOs have become a fixture of social welfare in the least developed countries of Africa. They arose into prominence due to their presumed advantage in service provision and governance. However, as time has passed, scholars and politicians alike have begun to view their role in social development with a critical eye. Of particular concern is their dependence upon foreign sources of aid, which – unsurprisingly – mirrors the dependency among African governments on the same. The conflicting objectives among states to benefit from the resources and activities of NGOs as well as to keep them at arm's length reflect the long and complicated history of social protection in Africa. That history exhibits a compilation of indigenous and familial traditions of informal protection; missionaries entrenched within colonial agendas; and politicized community organizing in the name of social justice. From this historical background of political tension, and within the existing socio-economic context of deep and widespread poverty, emerges the current dilemma: African states are passing restrictive NGO laws that are justified in terms of their sovereignty but have the potential to interfere with the social rights of beneficiaries.

280 Ibid § 13(d).

281 Ibid § 13(c), (g).

282 Ibid § 17(3)(e).

283 The Non-Governmental Organisations Act, No 5 of 2016 (Uganda); The Non-Governmental Organisations Regulations, No. 22 of 2017 (Uganda 2017).

### Beneficiaries' Perspective: How NGO-State Relations Can Affect Social Rights 3.

The analytical framework for this research is a beneficiary-centered approach. This approach is grounded in the fact that human rights law in general and the ICESCR in particular ultimately aim to protect the freedom of individuals and their right to dignified lives. From this angle, the manner in which NGOs and the state interact with one another becomes a potential social rights concern for beneficiaries of the NGOs. This chapter begins by introducing the beneficiary-centered approach and its usefulness as a critical framework for legal analysis. Next, it provides an overview and discussion of social rights as they have been guaranteed in international and regional instruments. Finally, it concludes with a discussion on how NGO-state relations can affect the social rights of beneficiaries.

#### *A Beneficiary-Centered Approach 3.1.*

A beneficiary-centered approach to human rights analyses of development policies places an emphasis on the wellbeing of the intended beneficiaries of social development. This angle can get lost when analysts use only an NGO-focused approach that takes into account the liberal rights of NGOs who work to alleviate social ills, or only a state-sovereignty approach that is critical of the foreign ties of many NGOs working in Africa as well as the foreign financial support that they enjoy. An NGO-focused approach tends to underestimate the harm that NGOs can do to beneficiaries, while the state-sovereignty approach tends to understate the obligation that states owe to beneficiaries in terms of their socio-economic rights. In contrast, a beneficiary-centered approach to assessing social development in Africa aims toward the empowerment and emancipation of the poor by consciously evaluating the living conditions and lived experiences of African peoples, rather than prioritizing the civil and political rights of NGOs or legitimizing state measures that restrict nonprofit activities.284

284 For a discussion on the related concept of client-centered lawyering, see Derrick A. Bell Jr., 'Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation' 85 Yale Law Journal 470 (1976). Bell argues

### *3. Beneficiaries' Perspective*

A beneficiary-centered approach is similar to the human rights based approach to development in that both envision people as rights holders rather than merely quiet recipients of charitable services, standing behind the main stage of law and politics.285 Evaluations of how NGOs use the human rights based approach indicate that the particular manner in which the human rights based approach is applied will affect its impact on social development.286 If such approaches are to bring about the realization of social rights, then they must challenge structural inequities in order to achieve the lasting social changes that can actually support the progressive realization of social rights.287 This is why bringing together the human rights based approach and a beneficiary-centered approach in the assessment of social development policies can address the root causes of poverty.288 In legal terms, this means ensuring that the state fulfills its social rights obligations toward rights holders, even when the state is not directly involved in the provision of social services. This is unlike the needs-based approach, which

that the attorneys who championed civil rights litigation like in *Brown v. Board of Education* risked doing a disservice to their clients when they failed to place substantive equity on the same footing as *de jure* equality. He argues for a clientcentered approach to ensure that improved educational quality is at the heart of *de jure* desegregation efforts.

285 See, Katarina Tomaševski, 'International Development Finance Agencies' in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), *Economic, Social and Cultural Rights: A Textbook* (2nd rev. edn, Martinus Nijhoff 2001) 403-413, 409 (explaining that the purpose of a human rights assessment of development programs is to anticipate possible adverse effects of development interventions on human rights, and prevent, reduce and mitigate harmful consequences.).

view[s] development as a need or a gift, motivated by and derived from charitable intentions and patronage relationships, rather than a reflection on rights. Needs-based approaches focus on fulfilling, for example, health care or educational needs, yet stop short of addressing structural conditions and policies that could make systematic change.289

In this regard, the beneficiary-centered approach transcends the depoliticization that characterizes the needs-based approach. However, it goes a step further by ensures that the rights of the beneficiaries remain at the center of legal concern. For example, while little doubt remains that severely restrictive NGO laws may interfere with the rights of NGOs, limiting one's legal analysis to the violations of NGOs' rights – and disregarding the rights of beneficiaries – is still technically a human rights based analysis. However, this view belongs to a limited debate that concerns NGOs and the political elites who would benefit from censoring them, rather than the socio-economically vulnerable individuals who depend on them.

Even when resources are severely constrained, states should prioritize the protection of vulnerable members of society. The Committee urges states to do this "by the adoption of relatively low-cost targeted programs."290 There appears to be evidence in support of an approach that emphasizes the sustained empowerment of marginalized people rather than merely offering piecemeal provision of social services. Research on NGOs that provide services versus those that integrate advocacy into their work offers evidence in support of using a beneficiary-centered approach when seeking to assess or alleviate deprivations related to social rights. Bill Abom asserts that NGOs that provide services without a participatory or critical approach risk undermining sustainable development by breaking down social capital within the community and encouraging a dependency mindset among beneficiaries.291 On the other hand, NGOs that engage in advocacy, community outreach and education, as well as exposing government to the perspectives of beneficiaries, are more likely to strengthen social capital

289 Susan O'Leary, 'Grassroots Accountability Promises in Rights-Based Approaches to Development: The Role of Transformative Monitoring and Evaluation in NGOs' 36 Accounting, Organizations and Society 21 (2017).

290 General Comment No. 3: The Nature of States Parties' Obligations (1990) para. 12.

291 Bill Abom, 'Social Capital, NGOs, and Development: A Guatemalan Case Study' 14 Development in Practice 342 (2004) 345-346.

and encourage sustainable social development.292 There is also evidence to suggest that certain forms of participatory human rights advocacy, particularly measuring the state's compliance with its social rights obligations, can have a transformative impact on beneficiaries in terms of both realizing and claiming their social rights.293

The dual role that NGOs play in their development work, as well as the legal measures that attempt to segregate NGOs into two broad categories, can also be understood through the opposing paradigms of the human rights based approach and the needs-based approach to development. For example, when NGOs provide services without advocating for or taking into account the social rights of their beneficiaries, they are employing a needs-based approach. While such an approach may appear to ensure harmonious state-to-NGO relations, it may also ensure that the NGO remains embedded within the same structural mechanisms that perpetuate poverty. Likewise, an analysis of NGO laws that does not take into account the rights claims of beneficiaries is not likely to address their concerns in a structural way. A needs-based approach is limited in its capacity to bring about lasting social change because it does not demand structural change. Indeed, when NGO laws include gag-rules that suppress nonprofit advocacy, they tend to push the third sector into a kind of non-confrontational, non-critical and passive role by silencing voices of dissent. These kinds of measures suppress the human rights based approach at a cost to the wellbeing of beneficiaries. Consequently, a beneficiary-centered approach is needed to bring to light that which threatens the social rights and social wellbeing of beneficiaries.

Consider a special feature of the NGO law in Ethiopia, which prohibits rights advocacy among NGOs that receive more than 10% of their funding from a foreign source.294 Ethiopia's NGO law has been called "one of the most controversial laws in Africa"295 due to its restrictive funding provisions and its threat of criminal sanctions. The law, referred to as the Charities and Societies Proclamation, targets human rights advocacy by stating that NGOs that receive more than 10% of their funding from foreign sources are forbidden from promoting human rights.296 In particular, such

292 Ibid.

293 O'Leary (2017).

294 Charities and Societies Proclamation No 621/2009 (Ethiopia).

295 International Center of Not-for-Profit Law, 'Introductory Overview' 12:2 International Journal of Not-for-Profit Law 5 (2010) 6.

296 Charities and Societies Proclamation No 621/2009 (Ethiopia).

organizations may not engaging in, *inter alia*, "the promotion of human and democratic rights; the promotion of equality of nations, nationalities and peoples and that of gender and religion; [and] the promotion of the rights of the disabled and children's rights".

The government of Zimbabwe tried to pass an NGO law in 2004 that had a similar effect. It sought to weed out human rights activities among NGOs by severely restricting the ability of NGOs to involve themselves in governance issues.297 Foreign NGOs would not be registered if their sole or principal purpose involved issues of governance, and local NGOs were forbidden from receiving foreign funding to carry out activities involving issues of governance.298 However as one UN report noted, separating activities involving good governance – which undoubtedly includes respecting and protecting human rights – from service provision is a particularly difficult task within the African regional framework of human rights law.299 Since the African Charter gives both ESC rights and civil and political rights equal legal significance as human rights, NGOs that provide social services are technically involved in the protection and fulfillment of human rights. This would have made them vulnerable to penalization under Zimbabwe's NGO bill.

By effectively censoring most of the non-profit advocacy within the country, Ethiopia's Charities and Societies Proclamation considerably undermines the human rights based approach to social development. Since most nonprofit actors in Ethiopia – including nonprofit service providers – rely heavily on foreign funding, they must be careful not to engage in rights advocacy. In some cases, however, it is unclear whether an NGO's activities constitute rights advocacy or service provision. For instances, social service programs that pursue equal access to education, promote women's health, or protect affordable housing for ethnic minorities could reasonably be interpreted under the Proclamation as forms of rights advocacy. Since some degree of rights promotion could overlap with some amount of service provision, NGOs may decline to pursue certain social programs, or even abandon existing programs, in order to avoid criminal liability under Ethiopian law. Although precise information is unavailable as to the volume of nonprofit social provision in Ethiopia, the presence of nonprof-

297 See *The Zimbabwean Non-Governmental Orgnizations Bill 2004 and International Human Rights Law/Standards: Issues, Analysis and Policy Recommendations* (UNDP 2004).

298 See ibid 17-18.

299 Ibid 18.

it service providers is substantial.300 Moreover, their contributions are important due to the severely limited coverage of public social protection schemes as well as widespread poverty and vulnerability among its population.301 For beneficiaries whose livelihoods depend on nonprofit activities, Ethiopia's NGO law creates a social rights dilemma by jeopardizing their access to an essential means of realizing and enjoying their social rights.

Nonprofit advocacy can be critical to the realization and continued enjoyment of social rights precisely because such activities prod or otherwise facilitate the state's capacity to honor its social rights commitments through awareness raising and engaging national stakeholders.302 Indeed, the ESCR Committee has recognized the "essential" and "important role" of human rights NGOs in "the promotion, protection and realization of social, economic and cultural rights" due to their role in "monitoring and evaluating State parties' compliance" with international human rights law.303 More to the point, the Committee makes it clear that, according to its own interpretation of the ICESCR, censoring or intimidating nonprofits is forbidden. The Committee writes that it

… considers any threat or violence against human rights defenders to constitute violations of States' obligations towards the realization of Covenant rights since human rights defenders also contribute through their work to the fulfillment of Covenant rights.304

In the context of analyzing NGO laws, the beneficiary-centered approach to human rights and development has the advantage of circumventing the deadlock between the defenders of state sovereignty and defenders of NGOs' rights by shedding light on the state's social rights obligations to-

300 Daniel Hailu and Terry Northcut, 'Ethiopia's Social Protection Landscape: Its Surface and Underlying Structures' 56 International Social Work 828 (2012).

301 Amdissa Teshome and others, 'Governance Characteristics and Policy Relevance of Informal Social Protection Services in Ethiopia: When the State Is Willing but Not Able' in Nicholas Awortwi and Gregor Walter-Drop (eds), *Non-State Social Protection Actors and Services in Africa: Governance Below the State* (Routledge 2018) 25-43, 26.

302 See Patrick Mutzenberg, 'NGOs: Essential Actors for Embedding the Covenants in the National Context' in Daniel Moeckli, Helen Keller and Corina Heri (eds), *The Human Rights Covenants at 50: Their Past, Present, and Future* (Oxford University Press 2018) 75-95, 87-89.

303 Human Rights Defenders and Economic, Social and Cultural Rights, Committee on Economic Social and Cultural Rights, U.N. Economic and Social Council, U.N. Doc. E/C.12/2016/2 (UN 2017) para. 1.

304 Ibid para. 5.

ward its own people, thereby contextualizing the entire debate within a beneficiary-based framework. This advantage reflects a critical edge that can accommodate post-colonial concerns by scrutinizing both foreign political entities as well as African political elites for their respective roles in the ongoing distress of African peoples.

The peculiarity of Africa's long-term dependence on foreign aid echoes earlier periods of colonial intervention wherein social programs such as health care and education were provided through missionaries in the service of colonial projects. Placing an emphasis on the rights of socio-economically marginalized individuals and groups – rather than the wellbeing of institutional actors – is a way to remain cognizant of the continent's long experience with subjugation and various forms of imperialism. Moreover, it is an attempt to ensure that human rights law does not serve to perpetuate further exploitation and injury by advancing the rights of a privileged few while neglecting the rights of the vulnerable and marginalized.

Social wellbeing of beneficiaries must also be sustainable in order to alleviate African countries of their dependence on foreign aid. Anything less would leave the realization and enjoyment of social rights vulnerable to the arbitrary contingencies and inevitable conflicts associated with foreign interests. Abdullahi Ahmed An-Na'im cautions against the impulse of the international community to choose "between rushing to 'doing something' [and] passively watching flagrant and systematic violations of basic human rights".305 He implores those in the west instead to cultivate "the principled and institutionalized application of the same standards everywhere over time" rather than employing "self-help and vigilante justice in crisis situations".306 In this regard, An-Na'im calls for the "promotion of local capacity", which he writes must be achieved

…through the development of national institutions and mechanisms of accountability within the specific context of each country. In other words, such efforts must build on what actually exists on the ground because attempting to impose norms and models developed elsewhere is both objectionable as a colonial exercise of cultural imperialism, and unlikely to be workable in a sustainable manner in practice. Moreover, these efforts should always respect the independent agency and human

305 A.A.A. Naʻīm, 'Introduction: Expanding Legal Protection of Human Rights in African Contexts' in A.A.A. Naʻīm (ed), *Human Rights under African Constitutions: Realizing the Promise for Ourselves* (University of Pennsylvania Press, Incorporated 2003) 1, 2.

306 Ibid.

### *3. Beneficiaries' Perspective*

dignity of its intended beneficiaries by gradually diminishing their dependency on external support. 307

Thus, the central orientation of such human rights analysis should be to seek social wellbeing and reaffirm the dignity of people living in Africa as the central concern when evaluating state action by taking into account the distinctive circumstances found on the continent and aiming for sustainability and longevity in social welfare. The approach needed is one that is concerned not only with guaranteeing the realization of social rights for beneficiaries in sub-Saharan Africa, but also with aiming for the underlying ideal of human freedom that those rights are meant to achieve. As Ashwani Kumar posits, the poor are more than just people who lack material items such as food, income and security, they are also powerless in that they lack "freedom to achieve even minimally satisfactory living conditions."308 Ultimately, a beneficiary-centered focus within a human rights based approach to development is about empowerment within enormously unfavorable socio-economic circumstances as well as emancipation from oppressive societal structures.309

#### *Social Rights of Beneficiaries 3.2.*

The social rights of beneficiaries can be found in international human rights law as well as regional African human rights instruments. The social rights of beneficiaries correspond to certain state obligations toward the beneficiaries and, ultimately, give rise to additional state obligations toward nonprofit entities that are essential to the realization and enjoyment

307 Ibid 3. Elsewhere I have traced how at the end of the twentieth century the primary aim of international humanitarian intervention in Somalia shifted away from humanitarian protection towards an emphasis on top-down state building, consequently undermining the legitimacy of those efforts within Somalia. (Jihan A Kahssay, (Note) 'Lessons Learned from Somalia: Retuning to a Humanitarian-Based Humanitarian Intervention' 19 UC Davis Journal of International Law & Policy 113 (2012).).

308 Ashwani Kumar, 'The Question of the Poor' in Rupert Taylor (ed), *Third Sector Research* (Springer 2010) 281-298, 285.

309 See Tom Inglis, 'Empowerment and Emancipation' 48 Adult Education Quarterly 3 (1997) 4 ("…empowerment involves people developing capacities to act successfully within the existing system and structures of power, while emancipation concerns critically analyzing, resisting and challenging structures of power.").

of social rights. This section will provide some background on the international and regional legal frameworks wherein which social rights are enshrined, and lay out the social rights of beneficiaries that bind African states.

### The Human Rights Framework & General Problems with Social Rights 3.2.1.

The Universal Declaration of Human Rights recognizes social rights as being indispensable for guaranteeing human dignity and the free development of one's personality.310 Social rights, found in articles 22, 25 and 26, include the right to social security; an adequate standard of living, including food, clothing, housing, medical care and social services that are necessary for one's health and wellbeing; special rights for the protection of children and mothers; and education. Despite its high ideals, the Declaration is not a legally binding document. There are, however, two major instruments of international law that do in fact impose social rights obligations on African states. These are the ICESCR and the African Charter. The social rights obligations of African states under these two human rights instruments will be discussed in the follow subsections, yet it is worthwhile noting here that there are still several more instruments of international human rights law that recognize social rights and impose corresponding obligations upon states.311

Although states are bound by their social rights obligations, the strength of these obligations is overshadowed by the fact that social rights are largely unenforceable at the international level.312 Moreover, there remains

310 Universal Declaration of Human Rights, UNGA (adopted 10 December 1948) UN Doc A/810 (UDHR) art. 22.

311 E.g., International Covenant on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 (ICERD) art. 5 (e) (iii - v); International Covenant on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (ICEDAW) arts. 11 (1) (e), (2) (b) (c), 12 (1 -2), 14 (2) (b - d); Covenant on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC) arts 20, 23-28.

312 The ICESCR establishes the competence of a treaty body (originally the UN Economic and Social Council, but later the Committee on Economic, Social and Cultural Rights) to supervise State compliance, but does not authorize any tribunal to hear or adjudicate individual complaints, and does not propose any

### *3. Beneficiaries' Perspective*

doubt as to their justiciability.313 At the theoretical level, these concerns are often the consequence of efforts to distinguish economic, social and cultural (ESC) rights from their civil and political counterparts. This is part of a longstanding theoretical debate in law about whether human rights are indivisible and interdependent, or whether they may be arranged in a hierarchical order.314 To summarize the point, the ESCR Committee wrote,

In relation to civil and political rights, it is generally taken for granted that judicial remedies for violations are essential. Regrettably, the contrary assumption is too often made in relation to economic, social and cultural rights. This discrepancy is not warranted either by the nature of the rights or by the relevant Covenant provisions.315

Yet, any view that arranges human rights norms into a hierarchy would be contrary to the formal position of international316 and regional317 law,

enforcement mechanism for the recommendations issued by treaty body. (See International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) arts. 16 - 22).

313 See Michael J. Dennis and David P. Stewart, 'Justiciability of Economic, Social and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?' 98 American Journal of International Law 462 (2004); but see Mónica Feria Tinta, 'Justiciability of Economic, Social and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions' 29 Human Rights Quarterly 431 (2007).

314 Formally, there is international recognition of the interdependence, indivisibility and interrelatedness of human rights norms. In practice, however, there is a divergence in the manner in which different human rights norms are treated by states and by the courts. (Dinah Shelton, 'Hierarchy of Norms and Human Rights: Of Trumps and Winners' 65 Saskatchewan Law Review 301 (2002) 302-303, 308-331.).

315 General Comment No. 9: The Domestic Application of the Covenant, Committee on Economic Social and Cultural Rights, U.N. Doc. E/1998/24 (UN 1997) para. 10.

316 UDHR preamble; ICESCR preamble; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) preamble. Vienna Declaration and Programme of Action, (July 12, 1993) U.N. Doc. A/CONF.157/23 para. 5 (endorsed by World Conference on Human Rights, UNGA (Dec. 20, 1993) UN Doc. A/RES/48/121) ("All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.").

each of which acknowledge the interconnectedness and interdependence of human rights norms. On this point, the ESCR Committee,

The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.318

Despite their questionable justiciability at the level of theory, there is evidence to suggest that jurisprudence on ESC rights continues to develop around the world within the regional and domestic fields.319 Notwithstanding, in general, domestic law and domestic courts in sub-Saharan African countries have yet to concretize social rights fully into individual entitlements with corresponding state duties.320 There are of course a few exceptional cases where there has been significant progress, such as the well-known judicial treatment of constitutionally guaranteed socio-economic rights in South Africa.321 There are also examples where rights have been concretized through legislation. In Kenya, for example, the child's right to free and compulsory education has been made concrete through the Children's Act and the Basic Education Act, although in other areas of social law, such as housing, health and water, individuals still use constitu-

317 African Charter on Human and Peoples' Rights (adopted 27 June 1981, entered into force 21 October 1986) 21 ILM 58 (ACHPR) preamble ("…civil and political rights cannot be disassociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights").

318 General Comment No. 9: The Domestic Application of the Covenant (1997) para. 10.

319 See generally, *Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Expereinces of Justiciability,* International Commission of Jurists (2008) <https://www.humanrights.ch/upload/pdf/080819\_justiziabilitt\_esc. pdf> (reviewing the enforcement and justiciability of economic, social and cultural rights at the regional and domestic levels).

320 Manisuli Ssenyonjo, 'Influence of the ICESCR in Africa' in Daniel Moeckli, Helen Keller and Corina Heri (eds), *The Human Rights Covenants at 50: Their Past, Present, and Future* (Oxford University Press 2018) 99-123, 107-108.

321 See Mirja Trilsch, 'What's the Use of Socio-Economic Rights in a Constitution? – Taking a Look at the South African Experience' 42 Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin America 552 (2009).

tional law to claim social goods through litigation.322 Finally, there seems to be some evidence to suggest that the process of concretization might be able to begin from even as high up as international law. According to one study, the creation of the ICESCR was followed by increased institutionalization of social security laws across 173 countries.323 While it cannot be said for sure whether the relation is causal,324 these findings nonetheless leave open the possibility that international recognition of ESC rights might have had a lasting impact on their domestic concretization.

These legally protected rights do not always translate into greater social wellbeing and protection in everyday life. Where social rights legislation does exists, as in the case of social security and social assistance law in Tanzania, coverage can be so limited and the quality of social goods so poor that social rights are effectively no more than privileges.325 In some countries, such as Botswana, social rights guarantees are left out of the constitution entirely.326 In other countries, like Namibia, most social rights appear in the constitution as policy directives rather than individual rights *per se*. 327 These constitutional directives are found in a number of African constitutions. To understand how they differ from concrete social rights entitlements, consider the example of Uganda.

322 Godfrey O. Odongo and Godfrey M. Musila, 'Direct Constitutional Protection of Economic, Social and Cultural Rights in Kenya's 2010 Constitution' in Danwood Mzikenge Chirwa and Lilian Chenwi (eds), *The Protection of Economic, Social and Cultural Rights in Africa: International, Regional and National Perspectives* (Cambridge University Press 2016) 338-371.

323 Lyle Scruggs, Christian Zimmermann and Christopher Jeffords, 'Implementation of the Human Right to Social Security around the World: A Preliminary Analysis of National Social Protection Laws' in Lanse Minkler (ed), *The State of Economic and Social Human Rights: A Global Review* (Cambridge University Press 2013) 117-134.

324 But see Ssenyonjo 112 (asserting that the adoption of ESC rights in the domestic law of African dualist states was influenced in part, but not explicitly, by the ICESCR.).

325 Tulia Ackson, 'Justiciability of Socio-Economic Rights in Tanzania' 23 African Journal of International and Comparative Law 359 (2015) 365-372.

326 Bonolo Ramadi Dinokopila, 'The Justiciability of Socio-Economic Rights in Botswana' 57 Journal of African Law 108 (2013) 109.

327 John Cantius Mubangizi, 'The Constitutional Protection of Socio-Economic Rights in Selected African Countries: A Comparative Evaluation' 2 African Journal of Legal Studies 1 (2006) 8-10.

Although Uganda is a member to the International Convention on Economic, Social and Cultural Rights,328 its constitution does not treat ESC rights the same as civil and political rights. The Ugandan constitution declares, as one of the state's objectives, the "guarantee and respect [of] the independence of non-governmental organisations which protect and promote human rights."329 It also recognizes some social state objectives, including a declaration that the state "shall endeavor to fulfill the fundamental rights of all Ugandans to social justice…and shall, in particular, ensure that…all Ugandans enjoy rights and opportunities and access to education, health services, clean and safe water, work, decent shelter, adequate clothing, food security and pension and retirement benefits."330 Yet, it remains unclear whether these objectives translate into constitutionally guaranteed social rights.331 On the other hand, the constitution explicitly and thoroughly sets out constitutional protections of civil and political rights, including the right to a fair hearing.332

In general, the realization and enjoyment of social rights in sub-Saharan Africa remains rather weak at the domestic level due to the fact that social rights are not widely concretized. Instead, social rights are guaranteed by the broad strokes of international (and sometimes constitutional) law. However, as suggested early, domestic courts are typically reluctant to concretize social rights directly from constitutional or international law.333 This reluctance is captured well by Odongo and Musila in their assessment of judicial enforcement of socio-economic rights enshrined in Kenya's 2010 constitution. In their view,

328 'Status of International Covenant on Economic, Social and Cultural Rights' (*United Nations*) <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY& mtdsg\_no=IV-3&chapter=4&clang=\_en>; 'Status of International Covenant on Civil and Political Rights' (*United Nations*) <https://treaties.un.org/Pages/ViewD etails.aspx?src=TREATY&mtdsg\_no=IV-4&chapter=4&clang=\_en>.

329 Constitution of Uganda (1995; rev. 2005) Objective V.

330 Ibid Objective XIV.

331 See *Centre for Health Human Rights & Development & Others v. Attorney General*,UGCC 4, Petition No. 16 of 2011 (CC 2012) (Uganda) (in holding that petitioner's claims represented political questions rather than constitutional challenges, the Constitutional Court of Uganda denied petitioner's request for a declaration that the constitution guarantees a right to health and that the government's health policies violate the right to health of pregnant women.).

332 Constitution of Uganda art. 28.

333 Ssenyonjo 109-122 (noting that in practice, domestic courts in both dualist and monist African states are reluctant to give full effect to ESC rights directly from the ICESCR.).

### *3. Beneficiaries' Perspective*

...it appears, as we have argued below, that court's refusal to consider individualised relief is consistent with the general approach adopted by Kenyan courts in ESC rights cases so far: they focus on structural conditions that would enable the state to progressively meet its obligations rather than on providing immediate relief upon demand.334

There are doctrinal grounds for the difficulty that courts encounter whenever they are asked to concretize social rights from international and constitutional instruments. First, the language of social rights found in constitutional and international instruments tends to be so broad that their distillation into specific entitlements does not lend itself well to principled legal reasoning. Terms such as 'health', 'education', 'housing' and 'social security' are equivocal in their meaning, and determining the specific content of their essential cores is fraught with unprincipled or incoherent methods.335 Second, it is difficult for a court to ascertain in concrete terms the state's constitutional or international duties with respect to realizing these social rights because such rights are typically subject to internal336 and external337 limitations clauses.338 Finally, courts hesitate to shape social

334 See, e.g., Odongo and Musila 364-365.

335 See Katharine G. Young, 'The Minimum Core of Economic and Social Rights: A Concept in Search of Content' 33 Yale Journal of International Law 113 (2008); Karin Lehmann, 'In Defense of the Constitutional Court: Litigating Socio-Economic Rights and the Myth of the Minimum Core' 22 American University International Law Review 163 (2006).

336 For example, some commentators view those rights that guarantee mere *access* to a good as having an internal limitation built into the scope of the right itself. See Odongo and Musila 346-347 (*quoting and citing* Japhet Biegon, 'The Inclusion of Socio-Economic Rights in the 2010 Constitution: Conceptual and Practical Issues' in Japhet Biegon and Godfrey M. Musila (eds), *Judiciary Watch Report: Judicial Enforcement of Socio-Economic Rights under the New Constitution : Challenges and Opportunities for Kenya*, vol 10 (Kenya Section of the International Commission of Jurists 2011).).

337 Under international law, social rights are subject to resource limitations and other limitations determined by law for the purpose of promoting general welfare. (ICESCR arts. 2(1) & 4.).

338 See Walter Kälin and Jörg Künzli, *The Law of International Human Rights Protection* (Oxford University Press 2009) 116. Cf. Scott Craig and Patrick Macklem, 'Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution' 141 University of Pennsylvania Law Review 1 (1992) 72-73 (cautioning that the imprecision of social rights "should not be overstated", and calling upon the judicial branch to make constitutionally guaranteed social rights more precise and concrete through "years of repeated applications of practical reasoning to facts at hand".).

rights into individual entitlements for specific goods or to grant judicial remedies because doing so involves addressing questions of a predominantly political nature, which some have argued threatens to upset democratic safeguards against the consolidation of power into the hands of unelected officials, and raises concerns about judicial accountability.339

Despite the difficulty in domestically concretizing internationally guaranteed social rights, international human rights law is not irrelevant as it does impose real, albeit not always concrete, duties upon states. Human rights law guarantees certain social rights to individuals, for which the state bears corresponding legal obligations. This gives rise to a legal relationship between the beneficiary and the state. In order to protect, respect and fulfill the social rights of beneficiaries, states must take steps toward the progressive realization of social rights, to the maximum of available resources.340 One consequence of this distinction between concrete legislation and broadly defined human rights is that people in African do not have a right to a particular service or benefit *per se*, but rather to the progressive realization of their social rights.

Closely related to the issues of justiciability and enforceability is the question of individual entitlements. Some have argued that, because their

339 Navish Jheelan, 'The Enforceability of Socio-Economic Rights' 2 European Human Rights Law Review 146 (2007). See also Shadrack B. O. Gutto, 'Beyond Justiciability: Challenges of Implementing/Enforcing Socio-Economic Rights in South Africa' 4 Buffolo Human Rights Law Review 79 (1998); Jeremy Waldron, 'A Rights-Based Critique of Constitutional Rights' 13 Oxford Journal of Legal Studies 18 (1993). Cf. Larry Alexander, 'What Is the Problem of Judicial Review?' in José Rubio Carrecedo (ed), *Political Philosophy: New Proposals for New Questions* (Franz Steiner Verlag 2007) 173-181, 177 (noting that although legislative interpretations of the constitution boast democratic legitimacy, "legislatures lack the power to entrench their laws against future legislatures. That is why the courts when engaging in constitutional decisionmaking have a settlement advantage over legislatures, at least if the courts follow a moderately strong doctrine of precedential constraint."); International Commission of Jurists, *Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Expereinces of Justiciability* (2008) 73-77 (pointing out that the boundary separating a legal issue from a political one is rather blurry, and emphasizing that, regarding the justiciability of ESC rights, "[t]he issue is not whether the judiciary should have the leading role in the implementation of public policies intended to comply with constitutional or international ESC rights obligations…[but] Rather, the fundamental question is what role the courts should have to supervise the implementation of these policies, according to constitutional, international human rights or legal standards." ).

340 ICESCR art. 2.

realization necessitates the demand for public goods, social rights do not yield individual rights that each person can claim against the state.341 However, the recent emergence of an individual complaint mechanism for the ICESCR suggests that blanket denials of an individualized component to social rights may be too simplistic.342 The individual complaint mechanism came into force in 2013 by way of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICE-SCR), which allows the ESCR Committee to adjudicate individual complaints against State Parties to the OP-ICESCR.343

A key feature of the OP-ICESCR is the CECSR Committee's power to request interim measures from state parties prior to the resolution of a case. These measures require states to perform, or abstain from performing, specific acts meant to prevent exceptional and irreparable damage to the enjoyment of covenant rights.344 Although some states are reluctant to acknowledge the binding effect of interim measures, international bodies insist that they are legally binding upon state parties.345 The existence of such a binding mechanism for individual complaints supports the notion that social rights are individual rights, yet the low ratification rate of the OP-ICESCR rather indicates the reluctance among states to recognize the same. As of February 2017, only 22 countries had ratified the OP-ICE-

341 See, e.g., Christian Tomuschat, *Human Rights: Between Idealism and Realism* (2d edn, Oxford University Press 2008) 42.

342 See, Martin Scheinin, 'Indirect Protection of Economic, Social and Cultural Rights in International Law' in Danwood Mzikenge Chirwa and Lilian Chenwi (eds), *The Protection of Economic, Social and Cultural Rights in Africa: International, Regional and National Perspectives* (Cambridge University Press 2016) 72-87, 73.

343 See 'UN Lauds New Tool Enabling Individual Complainst on Economic, Social and Cultural Rights' *UN News Centre* (Feb. 6, 2013) <http://www.un.org/apps/ne ws/story.asp?NewsID=44081#.WJMqCZUzVaS>.

344 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (adopted 10 Dec. 2008, entered into force 5 May 2013) 2922 UNTS 27 (Op-ICESCR) art. 5.

345 See Christian Courtis, *Commentary on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights,* International Commission of Jurists & Inter-American Institute of Human Rights, (2008) 71 <https://www.icj. org/wp-content/uploads/2009/07/Commentary-OP-ICESCR-publication-2009-en g.pdf>; Viviana Krsticevic and Brian Griffey, 'Interim Measures' in Malcolm Langford and others (eds), *The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: A Commentary* (Pretoria University Law Press 2016) 293-326, 320-325.

SCR.346 Likewise, within the African continent, commitment to the OP-ICESCR is extremely low despite efforts of the African Commission on Human and Peoples' Rights to urge African states to ratify the OP-ICE-SCR.347 As of September 2018, only three African countries were state parties to the optional protocol.348 If more African states join the OP-ICESCR in the future, intern measures could be employed to require states to amend problematic NGO laws.

#### International and Regional Protection for Social Rights 3.2.2.

At the international level, social rights are most prominently featured in the ICESCR. As of 2017, the ICESCR enjoys wide acceptance among African states. It has been ratified by all but four African countries (South Sudan, Mozambique, Comoros and Botswana).349 Ten African states parties to the treaty have filed declarations or reservations to its terms, although two have since withdrawn their reservations.350 Of the remaining eight, only five state parties make reservations that explicitly limit their obligations regarding social rights. Kenya limits its obligation to provide workers with remunerated maternity leave, while Algeria, Madagascar, South Africa and Zambia restrict their obligations regarding the free and compulsory provision of primary education to all.351 The withdrawn reservations, previously submitted by Congo and Rwanda, also limited the duties of those states with regard to the provision of education.352 With the exception of these limitations on the provision of education, almost all African states are bound by all the terms of the ICESCR.

352 Ibid.

346 See 'Status of Optional Protocol to the International Covenant on Economic, Social and Cultural Rights' (*United Nations*) <https://treaties.un.org/Pages/View Details.aspx?src=IND&mtdsg\_no=IV-3-a&chapter=4&clang=\_en>.

347 Resolution on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, ACmHPR (May 2, 2012) (Resolution on the OP-ICESCR).

348 See 'Status of Optional Protocol to the International Covenant on Economic, Social and Cultural Rights'(*United Nations*).

349 'Status of International Covenant on Economic, Social and Cultural Rights' (*United Nations*).

350 Ibid.

351 Ibid.

### *3. Beneficiaries' Perspective*

At the regional level, the African Charter recognizes certain social rights, which are enshrined in articles 16 and 17.353 These include the right to the best attainable physical and mental health, and the right to education. Notably missing are the rights to food, water, housing, social security and an adequate standard of living. However, the African Commission has recognized additional social rights by deriving them from others explicitly guaranteed in the Charter. These will be discussed in detail below.

Additionally, social rights are protected in the African Charter on the Rights and Welfare of the Child (African Children's Charter),354 and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (African Women's Protocol).355 Finally, various 'soft law' documents recognize social rights at the regional level. They include the Pretoria Declaration on Economic, Social and Cultural Rights in Africa356, the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples' Rights357 and other resolutions of the African Commission. Although technically non-binding,358 these documents offer guidance on the normative content of social rights in Africa and are legally significant because the African Commission often relies on them in its opinions.359 Some international lawyers insist that relying on 'soft law' and other nonbinding texts in order to interpret the provisions of a treaty is at odds with

353 African Charter.

354 African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November 1999) OAU Doc. CAB/LEG/24.9/49 (ACRWC), arts. 11, 14.

355 Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (adopted 11 July 2003, entered into force 25 November 2005) AU Doc. CAB/LEG/66.6 (African Women's Protocol), arts. 12-16.

356 Pretoria Declaration on Economic, Social and Cultural Rights in Africa, ACmHPR (Dec. 7, 2004).

357 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Chart on Human and Peoples' Rights, ACmHPR (Oct. 24, 2011).

358 Sibonile Khoza, 'Promoting Economic, Social and Cultural Rights in Africa: The African Commission Holds a Seminar in Pretoria: Recent Developments' 4 African Human Rights Law Journal 334 (2004) 338.

359 See, e.g., *Monim Elgak, Osman Hummeida and Amir Suliman v. Sudan*, Communication 379/09 (ACmHPR 2014) para.134; see also *Purohit v. Gambia, paras. 81-82* (*relying* on Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care, UNGA (Dec. 17, 1991).).

the Vienna Convention.360 However, the African Commission may be justified in doing so due to the broad spectrum of interpretive tools made available to it by Articles 60 and 61 of the African Charter.361

As of September 2018, the African Court on Human and Peoples' Rights, which is a judicial body, has not yet issued a decision on the normative content of social rights or the state's social rights obligations under African human rights law.362 The only two regional bodies that have done so are the African Commission and the African Children's Committee. As such, this chapter will review the jurisprudence emanating only from these two treaty bodies in order to clarify the core obligations of African states regarding the realization and enjoyment of social rights.

The Committee on Economic, Social and Cultural Rights <IP_ADDRESS>.

The ESCR Committee serves as the Covenant's treaty body and issues interpretive guidelines through the adoption of general comments.363 These comments provide normative content to the social rights and corresponding obligations declared in the Covenant. Although the general comments of UN treaty bodies are not legally binding *per se*, they represent the official interpretation of the treaty body and are not without any legal significance or consequence.364 In international law, treaty interpretation and state practices are important indicators of a norm's legal character. States are not permitted to decide for themselves whether they have violated the ICESCR. As per the purpose of ICESCR, the ESCR Committee has that fi-

360 Malgosia Fitzmaurice, 'Interpretation of Human Rights Treaties' in Dinah Shelton (ed), *The Oxford Handbook of International Human Rights Law* (Oxford University Press 2013) 739-771, 765.

361 African Charter arts. 60-61 (permitting broadly the use of "…African practices consistent with international norms on human and peoples' rights, customs generally accepted as law, general principles of law recognized by African states as well as legal precedents and doctrine.").

362 It appears that the primary reason for this is a lack of applications lodged before the courts alleging social rights violations.

363 See Tomuschat (2008) 190-191.

364 Nigel S. Rodley, 'The Role and Impact of Treaty Bodies' in Dinah Shelton (ed), *The Oxford Handbook of International Human Rights Law* (Oxford University Press 2013) 621-648, 639-641; Nihal Jayawickrama, *The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence* (Cambridge University Press 2002) 167-168.

nal responsibility.365 Regarding state practice, states rarely put forward their own interpretation of specific provisions of the ICESCR.366 Moreover, they tend to accept interpretations of the ESCR Committee, thereby implicitly endorsing them.367

The legal significance of general comments is also characterized by their impact on court opinions. Judicial bodies, including domestic courts, sometimes rely on the interpretation of treaty bodies as though they had persuasive authority. For instance, the International Court of Justice (ICJ) modeled its own interpretation of human rights treaties in accordance with the jurisprudence of treaty bodies. Following the interpretations of the U.N. Human Rights Committee (HRC), which is the supervisory body of International Covenant on Civil and Political Rights, the ICJ writes:

66. … Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the [Human Rights] Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty. The point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.368

#### African Commission on Human and Peoples' Rights <IP_ADDRESS>.

The African Commission shoulders the task of interpreting the African Charter through the promulgation of guidelines and principles, which states may use to implement Charter provisions.369 Its interpretations draw upon relevant international and regional human rights instruments, including the International Covenant for Economic, Social and Cultural

365 Alston and Quinn (1987) 163.

366 Kerstin Mechlem, 'Treaty Bodies and the Interpretation of Human Rights' 42 Vanderbilt Journal of Transnational Law 905 (2009) 920-921.

367 Ibid 921.

368 *Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)*, 2010 I.C.J. Rep. 639, (ICJ 2010) para. 66-67.

369 African Charter art. 45 (1) (b); Udombana (2004) 'Between Promise and Performance: Revisiting States' Obligations under the African Human Rights Charter' 119.

Rights.370 The African Charter explicitly permits reliance on a broad range of sources for its interpretation, including "African practices", which do not obviously constitute binding legal sources.371 Some scholars argue that the Charter even permits the use of 'soft law' or treaties that are not yet in force.372

Although it remains doubtful that the Commission's outputs bind African states, some commentators (including, at times, the African Commission) insist that they do.373 The African Commission's outputs, like those of the ECSCR Committee, nonetheless provide persuasive insight into the normative content of social rights guaranteed by the African Charter, as well as the states' corresponding duties.374 Moreover, they are legally significant due to their impact on the decisions of judicial bodies. In the same case ICJ cited earlier, the court remarked on its willingness to rely on the interpretations of the African Commission:

Likewise, when the Court is called upon, as in these proceedings, to apply a regional instrument for the protection of human rights, it must take due account of the interpretation of that instrument adopted by the independent bodies which have been specifically created, if such has been the case, to monitor the sound application of the treaty in question. In the present case, the interpretation given above of Article 12, paragraph 4, of the African Charter is consonant with the case law of the African Commission on Human and Peoples' Rights established by Article 30 of the said Charter…375

Although binding legal norms are preferred for the enforcement of law, non-binding 'soft law' can still be effective in improving state compliance. Rachel Murray and Debra Long have gone so far as to argue that the binding/non-binding distinction is an "unhelpful distraction" for the evaluation of state compliance with the Commission's decisions.376 Their research concludes that the non-binding status of the African Commission's

370 African Charter arts. 60-61.

371 Ibid art. 61.

372 E.g., Fitzmaurice (2013) 765.

373 R. Murray and D. Long, *The Implementation of the Findings of the African Commission on Human and Peoples' Rights* (Cambridge University Press 2015) pp. 52-56.

374 See ibid 58-61.

375 *Case Concerning Ahmadou Sadio Diallo* para. 67.

376 Murray and Long (2015) 58.

findings does not preclude compliance by African States.377 Indeed, Kofi Oteng Kufur argues that by clarifying the meaning of rights, the African Commission is "making the law more determinate", which in turn "creates the conditions for the [States] parties to fulfill their obligations."378 Murray and Long assert further that in some cases insisting upon the binding effect of the Commission's decisions may be undesirable because doing so would likely result in political backlash and "undermine the overall authority of the African Commission."379 As some observers have commented, the "persuasive style" of the African Commission's outputs "takes the law as an invitation to dialogue between more or less equal parties", and "the [state] authorities respond better to something that won't criminalise them and where there will be less public criticism, and this may ultimately result in greater compliance."380

### African Committee of Experts on the Rights and Welfare of the Child <IP_ADDRESS>.

The Committee of Experts on the Rights and Welfare of the Child (African Children's Committee) is the treaty body charged with interpreting and monitoring the implementation of the African Children's Charter.381 The African Children's Charter guarantees various social rights.382 Article 11 lays out the right of children to education, including "free and compulsory basic education." Article 14 guarantees children's right to the "best attainable state of physical, mental and spiritual health".

The Committee's findings offer persuasive interpretations of the Charter in at least two meaningful ways. First, they provide clear guidance on the normative content of the state's minimum core obligation. Second, they contribute guidance on the general obligations of states. For instance, in implementing General Comments of the ESCR Committee, the African Children's Committee agrees that states have obligations to "protect, ful-

377 Ibid 56.

378 Kufuor (2010) 72.

379 Murray and Long (2015) 57.

380 Ibid 16-17 (internal quotation marks and citations omitted).

381 African Children's Charter arts. 32, 42; *Michelo Hunsungule and Others (on Behalf of Children in Northern Uganda) v. Uganda*, Communication No. 1/2005 (ACmERWC 2013) para. 39.

382 African Children's Charter.

fill, respect and promote."383 The Committee notes further that although the "general obligation that States undertake is subject neither to progressive realization, nor to available resources",384 certain specific provisions of the Charter, including the right to health, are subject to these qualifications.385 The Committee strongly insists that states must fulfill its obligations effectively in accordance with "due diligence" and "reasonableness" standards.386 The key question is, has a government "take[n] all reasonable steps necessary to fulfill its obligations under the Charter?"387

#### Social Rights and their Normative Content 3.2.3.

The text of the ICESCR explicitly recognizes several social rights. These include rights relating to social security, health, education, housing and an adequate standard of living. Although these rights are enshrined in law, their meaning is rather ambiguous as the Covenant leaves key terms undefined. The right to social security is guaranteed to everyone and includes social insurance, although these terms are not defined.388 Likewise, the Covenant guarantees the right to an adequate standard of living for each person and his or her family, which includes adequate food, clothing and housing as well as continuously improving living conditions, without explicating what precisely constitutes an adequate standard of living, food, clothing, etc.389 The same can be said of the remaining social rights, which are "freedom from hunger";390 and the "enjoyment of the highest attainable standard of physical and mental health".391 The right to education, however, has been fleshed out a bit more.392 It includes free and compulsory primary education, as well as some degree of secondary, tertiary and fundamental education.393 Ultimately, however, the Covenant does not en-

386 Ibid, paras. 38, 69-70.

383 *Centre for Human Rights, University of Pretoria and La Rencontre Africaine Pour La Defense Des Droits De L'homme v. Senegal*, (ACmERWC 2014) para. 47.

384 *Hunsungule v. Uganda* para. 37.

385 Ibid para. 72.

387 Ibid, para. 70.

388 ICESCR art. 9.

dow social rights with sufficient normative content to determine what precisely each right entails. This means that their contents are up for interpretation.

The Committee has developed a body of texts – particularly its General Comments – that are dedicated to interpreting the meaning of Covenant rights. These texts tend to use a teleological style of interpret in order to construct social rights in the broadest way possible, which also allows the Committee to take advantage of the Covenant's call for the *full* realization of social rights. While such a broad interpretation seems harmless since states may achieve these lofty goals progressively, such a construction appears to give social rights an idealistic, rather than legalistic, character.

Regarding the right to adequate housing, the Committee has noted that this includes "the right to live somewhere in security, peace and dignity" rather than a more narrowly constructed notion such as "merely having a roof over one's head".394 While the Committee recognizes that the adequacy of housing will vary in relation to the given circumstances, it insists that certain aspects of adequacy are inherent to the right to housing.395 These include security of legal tenure, the availability of services, materials, facilities and infrastructure, the affordability, habitability, accessibility and cultural adequacy of housing, and the proximity of housing to employment and social facilities.396

The right to adequate food is similarly interpreted in a broad manner so as to be fully realized "when every man, woman and child…have physical and economic access at all times to adequate food or means for its procurement."397 This is far from a restrictive construction that would limit the right to "a minimum package of calories, proteins and other specific nutrients."398 The Committee also incorporates the notion of sustainability into the right to adequate food in order to protect the rights of future generations.399 Finally, the Committee asserts that the right to adequate food implies that dietary needs must be met and that food must be safe to consume, culturally acceptable (or made acceptable for consumers through

394 General Comment No. 4: The Right to Adequate Housing, Committee on Economic Social and Cultural Rights, U.N. Doc. E/1992/23 (UN 1991) para. 7.

395 Ibid para. 8.

396 Ibid paras. 8 (a) - (g).

397 General Comment No. 12: The Right to Adequate Food (1999) para. 6.

398 Ibid.

399 Ibid para. 7.

proper labelling, processing and distribution), and both available and accessible.400

The right to education is similarly construed in a broad manner, such that the Committee emphasizes four generic aspects: availability, accessibility, acceptability and adaptability of education.401 The right to technical and vocational training has received additional attention from the Committee. It is said to include a variety of aspects, such as acquiring knowledge and skills which contribute to one's personal development, self-reliance and employability.402 Once again, the Committee's broad generalization are a way to universalize some basic standards for social right while leaving intact the discretion of each state to determine the particularities of social rights in accordance with the prevailing conditions within the state.

In the case of the right to health, the Committee is careful not to employ the widest possible interpretation. It notes cautiously that the "right to health is not to be understood as the right to be *healthy*".403 It notes that the state cannot be the guarantor of good health or provide protection against every possible illness or disease.404 Instead, the right "must be understood as the right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health."405 This includes freedom to control one's body and health, such as sexual and reproductive health,406 and freedom from bodily interference, such as torture, experimentation and non-consensual medical treatments.407 The Committee also notes that normative contents of the right to enjoy the highest attainable standard of health is partly defined, or perhaps limited, by the availability of the state's resources.408

In other ways, however, the right to health is understood broadly. It includes the right to a system of health protection, as well as the right to un-

400 Ibid para. 9-13.

401 General Comment No. 13: The Right to Education, Committee on Economic Social and Cultural Rights, U.N. Doc. E/C.12/1999/10 (UN 1999) para. 6.

402 Ibid para. 16.

403 General Comment No. 14: The Right to the Highest Attainable Standard of Health (2000) para. 8 (emphasis in original).

404 Ibid para. 9.

405 Ibid.

406 General Comment No. 22: The Right to Sexual and Reproductive Health, Committee on Economic Social and Cultural Rights, U.N. Doc. E/C.12/GC/22 (UN 2016).

407 General Comment No. 14: The Right to the Highest Attainable Standard of Health (2000) para. 8.

408 Ibid para. 9.

derlying determinants of health, such as access to water, adequate sanitation, food, housing and healthy occupational and environmental conditions.409 Moreover, the Committee insists upon the generalizable aspects that it has found in other social rights – the availability, accessibility, acceptability and quality of health care – each aspect being adjustable in accordance with prevailing conditions.410 Finally, the Committee constructs implicit rights from the Covenant's explicit mandate that states achieve a non-exhaustive list of objectives.411 These rights, some of which overlap with others previously mentioned, include the right to maternal, child and reproductive health, to healthy natural and workplace environments, to prevention, treatment and control of diseases and to health facilities, goods and services.412

Perhaps the Committee's most ambitious interpretation of the Covenant is its construction of the implicit right to water, which is not featured explicitly anywhere in the Covenant. The Committee reasons that the right to water must exist because it is a necessary precondition for the realization of almost every other social right, as well as the right to life and the human dignity.413 It is as if the right to water lurks in all corners of the Covenant. In terms of its generic aspects, this right entails entitlement to "sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use," as well as water of a decent quality.414 More specifically, the right to water includes the freedom to maintain access to existing water supplies, free from interferences such as arbitrary disconnections or contamination, as well as "the right to a system of water supply and management".415

Finally, the Committee has weighed in on the right to social security. This is perhaps the most difficult right to interpret because the Covenant provides absolutely no definition or explanation for what social security might entail, except to note that it includes social insurance. As such, the Committee relies heavily on Conventions of the International Labor Organization. It notes that the right to social security is essentially the right to

409 Ibid paras. 8 & 11.

410 Ibid para. 12.

411 ICESCR art. 12 (2) (a) - (d).

412 General Comment No. 14: The Right to the Highest Attainable Standard of Health (2000) paras. 13-17.

413 General Comment No. 15: The Right to Water, Committee on Economic Social and Cultural Rights, U.N. Doc. E/C.12/2002/11 (UN 2003) paras. 3 & 6.

414 Ibid paras. 2 & 12.

415 Ibid para. 10.

access benefits in order to secure protection from a variety of social risks.416 These risks include income unaffordable access to health care; insecurity brought on by sickness, disability, maternity, injury, unemployment, old age, or death of a family member; and insufficient family support.417 In terms of freedoms and entitlements, the right entails freedom from unreasonable restrictions of existing social security coverage, as well as the right to "equal enjoyment of adequate protection from social risks and contingencies".418 Finally, the Committee articulates the generic aspects of availability, adequacy, and accessibility, which relate to having a transparent social security system in place that includes social assistance and non-contributory schemes with universal coverage.419

Unlike the ICESCR, the African Charter only explicitly recognizes two social rights: the right to "the best attainable state of physical and mental health" and the "right to education."420 However, the African Commission has expanded the scope of protection rather extensively to include a wide range of social rights, often by relying on the ICESCR and the interpretive work of the ESCR Committee.421 According to its construction of the African Charter, several social rights are implicitly guaranteed, including access to basic shelter, housing, sanitation and safe water;422 right to food;423 electricity;424 protection from arbitrary and forced eviction;425 access to affordable and reasonable health facilities, goods and services for

416 General Comment No. 19: The Right to Social Security, Committee on Economic Social and Cultural Rights, U.N. Doc. E/C.12/GC/19 (UN 2007) para. 2.

422 *SERAC v. Nigeria, paras. 51- 52, 59-61*; see also Resolution on the Right to Water Obligations, ACmHPR (Feb. 28, 2015).

423 *SERAC v. Nigeria* para. 65; *Sudan Human Rights Organisation & Centre on Housing Rights and Evictions v. Sudan*, Comm. Nos. 279/03, 296/05 (ACmHPR 2009) para 209.

424 *Free Legal Assistance Group and Others v. Zaire (DRC)*, Comm. Nos. 25/89, 47/90, 56/91, 100/93 (ACmHPR 1996) para. 47.

425 *SERAC v. Nigeria* para. 63; see also Resolution on the Right to Adequate Housing and Protection from Forced Evictions, ACmHPR (Oct. 9-22, 2012).

### *3. Beneficiaries' Perspective*

all;426 free and compulsory primary education;427 and affordable vocational training and adult education.428

In summary, both the ICESCR and the African Charter enshrine certain social rights but leave much for interpretation, without which the rights would lack substantive content. By means of their interpretive work, the ESCR Committee and the African Commission have stepped in to provide guidance on the normative aspects of social rights. By looking to the object and purpose of their respective treaties, as well as the principle of human dignity, they are able to broaden the scope of protection. The downside is that such broad strokes lend social rights an ambitious and idealistic character. On the other hand, the treaty bodies counterbalance these seemingly lofty goals by leaving states a great deal of discretion to define the concrete peculiarities of each right in accordance with prevailing conditions, especially with regard to what constitutes an adequate amount of benefits. In this way, their interpretive work provides some meaningful normative content while remaining sensitive to the different needs and capabilities among states. It is from this normative framework that the corresponding social rights obligations of states must be understood.

#### Minimum Essential Levels of Social Rights 3.2.4.

The ESCR Committee recognizes that minimum essential levels exist, but often refers to them in rather general terms without specifying precisely their normative contents. Instead, minimum essential levels tend to read like a list of prioritized societal objectives or aims rather than substantive benefit levels. For example, in terms of the right to adequate food, states must act immediately to take "the necessary action to mitigate and alleviate hunger."429 A state violates its Covenant obligations when, although having the available resources to do so, it "fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free from

426 *Purohit v. Gambia* para. 80 (*reaffirmed* in *Egyptian Initiative for Personal Rights & Interrights v. Egypt* Comm. No. 323/06 (ACmHPR 2011) paras. 261, 264). See also Resolution on Access to Health and Needed Medicines in Africa, ACmHPR (Nov. 24, 2008); Resolution on the Health and Reproductive Rights of Women in Africa, ACmHPR (May 16-30, 2007).

427 Resolution on the Right to Education in Africa, ACmHPR (20 April 2016).

428 Ibid.

429 General Comment No. 12: The Right to Adequate Food (1999) para. 6.

hunger."430 Here, the prioritized objectives are mitigating and alleviating hunger, although it is not clear what quantity or quality of nutritional intake is needed in order to mitigate or alleviate hunger. Some commentators have noted the wisdom in leaving these normative determinations to the judgement of judicial bodies.431

The work of the ESCR Committee has, however, provided some insight into the matter by requiring states to include the results of specified assessments into their regular reporting duties. In this way, the ESCR Committee establishes certain normative standards with respect to each right, which all states must either report to have achieved or explain the reasons for failing to do so. Likewise, the African Commission and the African Children's Committee have also weighed in on the issue, however in slightly different ways. While the Children's Committee has provided normative content for a few social rights, the African Commission has conceptualized minimum essential levels predominately as state duties to respect existing social rights achievements, namely by refraining for destroying them or obstructing one's access to existing resources that are necessary for the enjoyment of social rights. As such, this subsection will discuss the jurisprudence of the Children's Committee as well as the ESCR Committee, but will leave out much of the African Commission's findings.

The Committee asserts that states have an immediate core obligation to ensure non-discriminatory and physical access to minimum essential amounts of safe water that is sufficient to prevent disease, affordable for vulnerable and marginalized groups, within a reasonable distance from the household, available in equally distributed facilities, and can be accessed without a threat being posed to one's personal security.432 Here, the prioritized objectives are preventing disease, affordability for all, and reasonable and equitable accessibility. Again, the normative specificity is left open for

430 Ibid para. 17.

431 Scott and Alston note that,

While *precise* identification of the minimum… as some objective measures is of course an illusory quest, the responsibility to exercise best judgement in the national and local context cannot be avoided. Courts will of course have to balance reaction to deprivation on a 'calling it as we see it' case-by-case basis with a pragmatic sense of what remedies are desirable and likely to prove effective.

(Craig Scott and Philip Alston, 'Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney's Legacy and Grootboom's Promise' 16 South African Journal on Human Rights 206 (2000) 250 (emphasis added).).

432 General Comment No. 15: The Right to Water (2003) para. 37.

interpretation. It is unclear, for example, how much water is needed to prevent disease, or what price point is considered affordable.

The right to adequate housing also corresponds to certain core obligations, though the Committee is much more precise here as to the normative content of these obligations. States must refrain from forcibly evicting people from their homes, which amounts to a *prima facie* violation, and they must take adequate measures to prevent and punish forced evictions carried out by third parties.433 The Committee notes in *Ben Djazia and Bellili v. Spain* that a forced eviction can occur even when the eviction is due to the expiration of the term of a rental lease between private parties if the State does not guarantee the eviction is compatible with Covenant rights and duties.434 Moreover, "evictions should not render individuals homeless", since the State must "ensure, where possible, that adequate alternative housing, resettlement or access to productive land, as the case may be, is available."435 The Committee found Spain violated the authors' right to adequate housing because it did not sufficiently demonstrate why no alternative housing was made available for the authors and their small children to prevent homelessness after they were evicted from their rental property.436 Here, is it quite clear that the minimum essential level for the right to adequate housing is to be free from forcible eviction and homelessness, which includes the right to receive adequate notice about legal action that could result in the loss of housing.437

The Committee also sets objectives for minimum essential levels regarding the rights to education and the highest attainable standard of health. As for the right to health, the state must ensure, *inter alia*, equitable access to health services and goods without discrimination, access to minimum essential food and freedom from hunger for everyone, and providing essential drugs.438 Likewise, objectives are set for the right to education, such

433 General Comment No. 7: The Right to Adequate Housing - Forced Evictions, Committee on Economic Social and Cultural Rights, U.N. Doc. E/1998/22, annex IV (UN 1997) paras. 8-9; General Comment No. 4: The Right to Adequate Housing (1991).

434 *Ben Djazia and Bellili v. Spain*,U.N. Doc. E/C.12/61/D/5/2015, Communiciation No. 5/2015 (CESCR 2017) (U.N.) paras. 14.1 - 14.2.

435 Ibid para. 15.2.

436 Ibid paras. 17.1 - 17.8.

437 *Idg v. Spain*,U.N. Doc. E/C.12/55/D/2/2014, Communiciation No. 2/2014 (CE-SCR 2015) (U.N.).

438 General Comment No. 14: The Right to the Highest Attainable Standard of Health (2000) para. 43.

as, *inter alia*, access to public educational programs that are free from discrimination, provide compulsory and free primary education for all, and ensure that – subject to minimum educational standards – education may be chosen freely without state or third party interference.439 Moreover, the text of the Covenant also sets objectives regarding the right to education, such as the full development of the human personality and the sense of dignity, strengthening respect for human rights, enabling people to participate effectively in a free society, promoting tolerance and friendship among all national, ethnic, racial and religious groups, and furthering the activities of the UN with respect to maintaining peace.440 Once again, these minimum essential levels do not indicate what quality of health or education is required to guarantee that the prioritized objectives will be obtained.

The African Children's Committee provides further guidance on minimum essential levels for the rights of children to health and education. In *Centre for Human Rights and Other v. Senegal*, 441 the African Children's Committee considered a case involving a certain group of Senegalese children, referred to as *talibés* students*,* who were allegedly in the care of exploitive private entities called *daraas*. The African Children's Committee concluded that the state violated the rights of these children to health and education in part by failing to provide them with adequate education and primary health services.

Regarding the right to the best attainable health, the African Children's Committee noted that a "[f]ailure to provide safe drinking water amounts to a violation",442 of the African Children's Charter, and that states must "ensure the provision of adequate nutrition".443 The African Commission has echoed the same in *Social and Economic Rights Action Center and Other vs. Nigeria,* whereby the Commission announced that a "failure of the Government to provide basic services such as safe drinking water and electricity and the shortage of medicine… constitutes a violation of Article 16" of the African Charter.444

As for the right to education, states must provide "free and compulsory basic education without any discrimination", which the African Children's

439 General Comment No. 3: The Nature of States Parties' Obligations (1990) para. 5; General Comment No. 13: The Right to Education (1999) paras. 51 & 57.

440 ICESCR art. 13 (1).

441 *Centre for Human Rights v. Senegal.*

442 Ibid, para. 52.

443 Ibid, para. 51.

444 *SERAC v. Nigeria, para. 47.*

Committee notes is a position supported by the African Commission's construction of the African Charter on Human and Peoples' Rights.445 The education provided must be of acceptable quality and "should be directed toward the child's personality, talents and mental and physical abilities to their fullest potential". 446 The *daraas* did not provide the *talibés* children with an adequate education. Additionally, rather than charge school fees, *daraas* forced *talibés* students to meet daily begging quotas, which kept students away from their studies for many hours per day, thereby depriving them of an adequate education.

The African Children's Committee concluded that Senegal failed to provide "necessary sanitation and nutrition to the *talibés*", in violation of their right to the best attainable health,447 and failed to fulfill its obligation "to provide free and compulsory education to all children". 448 The Committee reasoned:

The Respondent State, however, has failed to provide free and compulsory education to all children in accordance with the Charter. Consequently the *talibés* are forced to attend in the *daaras* where they are not subject to school fees except for the daily quota they should bring by begging. Nevertheless, the children do not get the necessary education they are entitled to in the *daraas*… as they spend more time in begging to fulfill their daily quota. In addition, the government failed to provide the necessary curriculum and facilities in which the *daraas* function in delivering education.449

In an earlier decision, the African Children's Committee fleshed out in greater detail the rights of children to health and education. That decision, which was supported in part by a parallel case decided on the same facts by the African Commission,450 is *Institute for Human Rights and Development in Africa and Other v. Kenya*. 451 There, the African Children's Committee dealt with the discriminatory denial of nationality to Kenyan-born chil-

445 *Centre for Human Rights v. Senegal, para. 46.*

446 Ibid, para. 46.

447 Ibid, para. 56.

448 Ibid, para. 48.

449 Ibid, para. 48.

450 *The Nubian Community in Kenya v. The Republic of Kenya*, 317/06 (ACmHPR 2015).

451 *Institute for Human Rights and Development in Africa and Other on Behalf of Children of Nubian Decent in Kenya v. Kenya*, No. 002/Com/002/2009 (ACmERWC 2011).