COVID-19 and Africa Symposium: Building Back Better–Can COVID-19 Renew African States’ Commitment to African Charter ESCR Obligations?

[Justice Jamesina E. L. King is a Commissioner of the African Commission on Human and Peoples’ Rights (ACHPR) and a Commissioner of the International Commission of Jurists. She is also a Justice of the Court of Appeal of Sierra Leone.]

The Constitutive Act of the African Union records in its preamble the determination of Member States to “take up the multifaceted challenges that confront our continent and peoples in the light of the social, economic and political changes taking place in the world”. In 2020, COVID-19 has precipitated many such challenges.

The African Charter on Human and People’s Rights simultaneously recognizes the need for the protection of both binding economic, social and cultural rights (ESCR) and civil and political rights (CPR). The Charter itself creates the African Commission on Human and Peoples’ Rights and mandates it to “ensure the protection of human and peoples’ rights under conditions laid down by the present Charter”.

The Commission has, from the outset of the COVID-19 pandemic, produced various statements and guidance for both State and non-State actors with a view fulfilling its mandate and preserving protection of all human rights in Africa during this unprecedented crisis.

With a focus on ESCR, this blog seeks to highlight same key aspects of the Commission’s responses to the COVID-19 pandemic. The Commission has provided such responses with a view to assisting in ensuring that COVID-19 does not result in the deterioration of adherence to human rights standards in Africa.

The interdependence of various Economic, Social and Cultural Rights

On the most direct level, the COVID-19 pandemic is a global public health emergency, with the WHO having declared it a global pandemic on 11 March 2020.

On 28 February, even before the WHO’s declaration, the African Commission had expressed its concern that COVID-19 was “putting in peril the health and safety of the peoples of Africa.” The Commission emphasized the need for African States to remain cognizant of their obligations in terms of the rights health (Article 16), life (Article 4) and access to information (Article 9), and called on States to urgently take “preventative measures to secure the health, safety and life”.

By 24 March, the Commission had developed its guidance to States further, expanding its focus beyond public health concerns and to include issues arising from States responses and the adoption of “migration measures” which have commonly included “lockdowns”. In this regard the Commission observed that such “containment measures” had already begun to have “serious consequences to the social and economic wellbeing of the most vulnerable members of society and all those whose survival depends on day-to-day engagement in economic activities”. This observation draws clear attention to the interdependence of different ESCR as, indeed, many such rights (such as food, water, sanitation, social security and housing) are standalone rights and aspects of the right to health or “social determinants of health”.

Importantly in the context of ongoing negotiations on an international treaty on business and human rights, to alleviate these impacts, the Commission called on both State and non-State actors to co-operate in solidarity-based measures including “funding relief measures to address the social and economic impact of the COVID19 prevention and containment measures”. The Commission provided clear guidance that “the private sector carries a responsibility proportional to its socio-economic power and influence to contribute to the measures for prevention and containment including through the contribution of resources”.

From the early stages of the pandemic, therefore, the Commission had expressly indicated that while COVID-19 responses to protect the right to health were necessary, so are simultaneous measures to ensure the fulfilment of State obligations and private sector responsibilities in terms of, as example, the rights to housing, social security, work and adequate standard of living.  This approach is similar to that of the UN Committee on Economic, Social and Cultural Rights in its own subsequent Statement on COVID-19.

Have African States responded effectively?

As the pandemic spread through Africa, and in line with the Commission’s recommendations, the scramble for States responses often included measures to alleviate the impact of COVID-19 on the social and economic well-being of their residents. Despite various such measures, by 4 June the Commission had warned that ESCR continued to be “negatively affected”. The Commission observed that though the right to health had been “profoundly challenged” the pandemic and States responses to it had still impacted on a full range of rights including the rights to work, education, food, water, sanitation, housing and right to social security.

The Commission therefore provided a range of recommendations for States, including the need for “stimulus packages” and direct “assistance to individuals, families and communities including vulnerable groups and at-risk groups, through at least a minimum essential level of food distribution, social welfare and other social security measures”.

Despite these responses, the World Bank predicted in July a potential scenario in which 50 million Sub-Saharan Africans alone would be sent into poverty as a result of the first continent wide recession in 25 years, with the ultimate impact of “eras[ing] several years of hard-won progress in poverty reduction”. Similarly, a forecasting report produced by the Institute for Security Studies in late June concluded that COVID-19 had become a “systemic human development crisis in Africa” and would further compromise African States ability to meet the targets set in the Sustainable development goals.

Judgments of domestic courts also reflect the failure of range of African countries to provide adequate protection for ESCR in their COVID-19 responses.

In South Africa, in separate decisions the South African the High Court ruled that the discontinuation of the provision of school meals and the continuation of unlawful evictions during lockdown periods were unlawful. The discontinuation of cash transfers for COVID-19 relief are now also subject to legal challenge.

In Malawi, in a decision relating to the challenge of lockdown regulations in the absence of the provision adequate social assistance, the High Court noted that “Malawi’s social protection system falls significantly short of the social protection floor guarantees on health and income security”. It concluded therefore that it was unconstitutional for the government to implement a lockdown “without paying particular regard to the right to life, and the right to a livelihood, which are seriously affected” thereby. In doing so the Court described it as “inconceivable” that social measures taken by the government were sufficient to ensure the execution of its human rights obligation in terms of the right to social security.

The Way Forward: Ensuring a Prosperous and Human Existence

The Commission has acknowledged that, most directly, “inadequate health systems and capacities for avoiding the cost to human life” and that “some already deficient health care systems may be pushed to their limits as the numbers of confirmed cases keep rising”. In the medium term, ensuring the strengthening of the quality and equitability of health care systems will be necessary to ensure that States can respond better to future public health crises.

In addition, however, as the Commission’s responses show, improved healthcare systems are not enough. Resilient and human rights compliant social security measures and comprehensively fulfilment of all ESCR is a matter of priority. ESCR cannot be treated as luxury obligations only capable of implementation by resource rich, developed countries. As the Chairperson of the Commission has stressed:

“the vulnerabilities, structural deficiencies and inequalities that COVID-19 brought to the fore are also a product of failures in pursuing human rights centered social and economic policies and the neglect by the social and economic policies of our societies of the centrality of socio-economic rights and the resultant gap between the promise of these rights and the lived realities of the masses of the people on our continent. Even at a time when incredible levels of growth are reported, this has never been accompanied by significant improvement in the standard of living of the vast majority of people in our societies. Indeed, as the GDP based economic development paradigm facilitates splendid levels of accumulation of power by global private actors and their local associates, majority of people continue to languish in poverty with no access to water, sanitation, health care, housing, sustainable livelihood and income and food.”

More recently in August 2020, the Commission adopted a detailed Resolution reiterating its view that human rights will be a “central pillar of successful response to COVID-19 and recovery from its socio-political impacts” in Africa. It emphasized the need for States to ensure the operation of “mechanisms for accountability and access to justice in the face of possible violations” of human rights resulting from COVID-19 response measures and highlighted need for States to ensure such measures “do not lead to the targeting or undue interference with the work of human rights defenders”.

Combatting poverty and inequality in Africa are necessary in both responding to the pandemic itself and “building back better” to ensure improved resilience to future public health and other emergencies. The implementation of obligations of States and the responsibilities of private sector actors in terms of binding ESCR in the African Charter will be critical in ensuring a prosperous and humane existence on the African continent post COVID-19.