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The African Commission on Human and Peoples’ Rights (the Commission) convened its 73rd Ordinary Session from 21 to 30 October 2022 in Banjul, The Gambia. The Commission published General Comment 7 on State Obligations under the African Charter on Human and Peoples’ Rights in the context of private provision of social services (the General Comment), which examines the obligations of States in relation to social services, such as water, education and healthcare. It is a response to the alarming commercialisation of public services by multinational corporations, local companies, and other private actors in Africa. The General Comment is concerned with how this commercialisation has adversely impacted the enjoyment of these vital services, as well as the possibility for social services to reduce inequality and promote economic mobility. Much is to be lauded about this General Comment, which promises to usher in a stronger, collective commitment to advancing human rights in Africa.

The General Comment represents the most comprehensive analysis of the provision of social services, which, it notes, are central to all human rights, particularly social, economic, and cultural rights. Social services under the African Charter on Human and Peoples’ Rights, such as education, food, housing, social security, water and healthcare, are human rights guaranteed to everyone and are not commodities to be enjoyed by only those who can afford them. The General Comment notes that the increasing trend of private actors providing social services has transformed these services into private commodities, characterised by commercial interests. Ergo, ‘the consequent commercialisation of social services risks eroding their intrinsic public function and impairing the enjoyment of human rights.’ [para 12]

Recognising several crucial normative developments and guidelines, such as the UN Guiding Principles on Business and Human Rights and the Abidjan Principles on the right to education [para 7], the General Comment provides a framework to regulate States and private actors providing social services. It is aimed at enhancing the accountability of States and the private actors themselves. It strongly emphasises the obligation of States to respect, promote, protect and fulfil all human rights, and it identifies public social services as being core to the enjoyment of these rights. Thus, through the General Comment, the Commission implores States to fund social services and use all resources to attain them [para 38]. It would be impossible to fulfil the duty to provide public social services ‘without sufficient resources being mobilised, allocated and spent in an accountable, effective, efficient, equitable, participatory, transparent and sustainable manner.’ [para 37]

Here are some key takeaways:

• The Commission noted that the provision of social services is inherently a public activity. When private actors endeavour to provide such services, they should forgo their private, profit-driven interests, and their principal objective should be the public interest. [para 15]
• The Commission remarked that the privatisation of social services does not necessarily have to lead to commercialising these services. States could enable universal access to social services through effective and comprehensive regulation and democratically controlled processes. [para 13]
• It recalled that private actors have been implicated in practices that include increasing the overall prices in the healthcare sector, which rendered life-saving procedures beyond the reach of indigent communities. This has distorted and subverted the potential impacts of social services. [para 17]
• It recommended that states must ensure that they act in a transparent and accountable manner and facilitate popular participation and enable them to have meaningful influence over decisions that directly affect them. [paras 18-19]
• The Commission also noted that states have invoked the concept of ‘progressive realisation’ to evade their human rights obligations and justify their persistent failures to ensure universal access to social services. Oftentimes, it is a thin disguise to hide a lack of political will. Progressive realisation prescribes ‘a comprehensive obligation to take a series of immediate steps that achieve visible results, which can be assessed against pre-determined benchmarks, with objectives that evolve over time.’ [paras 26-27]
• The Commission recommended that states must directly provide quality public social services and make them accessible to everyone [para 36], irrespective of their geographical location, at a specified quality and, depending on the circumstances, at no cost to the user. [para 16]
• In discharging their obligation to protect human rights, the Commission recommended that States must regulate multinational corporations, local companies, and other private actors. This means that States must ensure that these actors do not undermine human rights, but rather support the realisation of these rights. [para 43]

The General Comment is remarkable in its commitment to achieving and advancing public social services and its determination to hold the State and private actors accountable. Institutions in Africa that are charged with implementing and enforcing human rights should undoubtedly adopt this General Comment.

Want to learn more?

Read: Emerging from the COVID 19 Pandemic: What role for the Forgotten Right to Continuous Improvement of Living Conditions in the ICESCR?

Read: The Potential of Bold Remedial Relief to Enforce Socio-Economic Rights in South Africa – Komape v Minister of Basic Education

Listen: EPISODE 4: ‘That’s the key question’: Institutional Responsibility for Inequality