An analysis of the enforceability of economic, social and cultural rights of internally displaced persons: Nigeria and South Africa as case studies

Abstract

The creation of two separate groups of a recognised body of human rights known as Civil and Political rights, enshrined in the International Covenant on Civil and Political Rights (ICCPR), and Economic, Social and Cultural rights, set out in the International Covenant on Economic, Social and Cultural Rights (ICESCR), has formed an impression that civil and political rights are enforceable in courts while socio economic rights are not. Nigeria is an example of one of such countries where the 1999 Constitution includes economic, social and cultural rights’ provisions as well as civil and political rights. However, the economic and social rights provided in chapter 2 of the Constitution known as fundamental objectives and directive principles of state policy are not supposed to be justiciable in a court of law. These rights include the rights to food, adequate shelter, health, education, etc. However, the Nigerian position can be viewed from the fact that the African Charter on Human and Peoples’ Rights (ACHPR) (African Charter) incorporates similar economic and social right provisions and has been recognised as a domestic law in Nigeria. Thus, it is not only a regional treaty signed and adopted by Nigeria but has been passed into law by the Nigerian National Assembly. On the other hand, the 1996 South African Constitution provides for the economic and social rights along with civil and political rights and all such rights are included in the South African Bill of Rights and can all be challenged in a court of law, if violated. This paper will propose that in view of the provisions of the African Charter and mechanisms for implementation as well as other international conventions and national constitutional provisions on human rights, domestic courts may ensure that the socio-economic rights, particularly the right to adequate shelter of the internally displaced persons, are protected. Cases decided by South African courts will be discussed in order to lend weight to the notion that socioeconomic rights can be enforced in jurisdictions such as Nigeria even though the Constitution suggests otherwise.