“The Dr. Magufuli style”: Why Apt Priorities Should Follow Constitutional Formulations of Socio-Economic Rights in Sub-Saharan Africa

Duncan Okubasu Munabi - 12th February 2016

The newly drafted constitutions in Sub-Saharan Africa have responded to the social and economic conditions of Africans by formally describing the entitlement to basic and important necessities of life such as food, shelter, healthcare and social security. This category of rights described as “socio-economic rights” are being catalogued in Bills of Rights in the newly minted constitutions. This trajectory began with South Africa 1996 Constitution and has been followed by Kenya, Angola, Madagascar, Zambia and Zimbabwe to list just a few. The significant question that these formulations attract is whether it suffices to formally recognise rights in a national constitution.

Socio-economic rights are often associated with ‘positive’ obligations on the part of the state to set aside funds and fulfill them. For this reason, the responsibility to satisfy them in national constitutions is tempered with the permission to fulfill them progressively. “Progressive realisation” permission is infused in the state obligation to fulfill them, in view of their resource implication demands, so as to reconcile the tension between the textual entitlement and the reality that state resources can be limited or unavailable towards fulfilling them. In the context of Africa, the potential for this tension is pronounced because most countries in Africa have a relatively low GDP.

Certainly, their recognition is important because it demonstrates the state’s desire to assure primary social goods to their citizenry. Also, it gives institutions a textual basis for determining claims over acts and omissions that militate against their realisation. In practical terms, courts and other institutions that enforce or promote rights have definite foundations for use in the discharge of their mandates relating to socio-economic rights. Also, explicit constitutional formulations could influence state policy.

But mere recognition cannot suffice. For rights to be meaningful, they must be of practical significance to persons for whose wellbeing they were recognised. It does not assist one without a house to claim that the constitution guarantees him or her the right to housing. This implies that, whereas societies should recognise basic conditions of life as important state obligations, leadership should prioritise necessary funding and not hide behind the veil of recognition and ‘progressive realisation’ whenever they fail to assure these necessities. It is not in fact entirely true that sub-Saharan states lack resources. While it might be true that the resources are limited, corruption, abuse of office and poor prioritisation pose as predators to the already scarce resources; It is helpful if the limited resources are only channeled to rightful priorities.

But such leadership has been a rare phenomenon until, recently, when the People of Tanzania elected Dr. John Pombe Magufuli as their president. Magufuli’s leadership is unconventional- at least at its investiture. In the entire East African region, a euphemism ‘What Magufuli Would do’ is invoked to describe ‘less expensive alternatives’ because of the alternatives that he prescribes in the place of conventional expenditure. He commenced his anti-extravagance leadership by directing that the funds that were intended for the state dinner of the parliamentary opening be used to buy hospital beds for patients that were lying on the floor. He also cancelled the Independence Day celebrations and instead led the country in cleaning the environment. He also directed that the funds that were intended for the World Aids Day celebrations be used to purchase Anti Retro-viral drugs for patients with HIV/AIDS.

Tanzania’s Constitution does not have as elaborate socio-economic rights formulations as Zimbabwe’s, yet the impact of Magufuli’s priorities has far reaching positive practical implications than mere recognition of rights even in the most colourful of forms. Rather than merely making lofty descriptions of entitlements in their national constitutions, Sub-Saharan countries should prioritise expenditure on primary social goods than on political identity. The tension between the text and reality can be reconciled by progressive realisation permissions but also most significantly by suppression of state extravagance.

Author profile

Duncan Okubasu directs the Centre for Jurisprudence & Constitutional Studies at Kabarak Law School in Kenya.

Citations

Duncan Okubasu ” “The Dr. Magufuli style”: Why Apt Priorities Should Follow Constitutional Formulations of Socio-Economic Rights in Sub-Saharan Africa” (OxHRH Blog, 12 February 2016) <http://ohrh.law.ox.ac.uk/the-dr-magufuli-style-why-apt-priorities-should-follow-constitutional-formulations-of-socio-economic-rights-in-sub-saharan-africa/> [Date of Access]

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