Derivation of Rights: Affording Protection To Latent Socio-Economic Rights in The Fdre Constitution Amsalu Darge Mayessa

DERIVATION OF RIGHTS: AFFORDING PROTECTION TO
LATENT SOCIO-ECONOMIC RIGHTS IN THE FDRE

CONSTITUTION
Amsalu Darge Mayessa★
1.1. INTRODUCTION
A country‘s constitution has the potential to be powerful vehicle for giving
domestic legal effect to international standards on economic and social
rights. Civil and political and socio-economic rights have received extensive
protection via their inclusion as justiciable rights in the constitutions of
various countries. For instance, the 1996 South African Constitution can be
used as a model because it entrenches the two grand categories of human
rights as directly justiciable rights in its Bill of Rights. This symbolizes a far
reaching commitment on the national fora to the interdependent and
indivisibility of all human rights.1
When it comes to Ethiopia, almost one third of the Articles of the FDRE
Constitution are devoted to elaborating all categories of human rights.2
Chapter three of the FDRE Constitution engrained Bill of Rights that stands
in volume having thirty two articles3 embracing civil and political rights
extensively and very scant socio-economic rights. Ratification of
★Holds his LLB degree from Hawassa University, School of Law(2008) and LLM in
Human Rights Law from Addis Ababa University, School of Law(2011), formerly he served
as public prosecutor at West Wollega Zone Justice Office and Currently, he is a Lecturer
and Director of free legal aid center at Ambo University School of Law. He can be reached
at yedargeamsal@gmail.com.
1
Sandra Liebenberg, ‗The Protection of Economic, Social and Cultural Right in Domestic
Legal System‘, in Economic Social and Cultural Rights: A text book. Second Rev.edn. A.
Eideetal (ed.s), MartinusNijhoff Publishers(2001),p.56-76.
2
Minase Haile, ‗The New Ethiopian Constitution: It‘s Impact up on Unity, Human Rights
and Development', Suffolk Transnational Law Review, Vol.20, No.1 (1996), p.53.
3
Fasil Nahum, Constitution for A Nation of Nations, the Ethiopian prospect, the Red sea
Press (1997),p.10
Joornaalii Seeraa Oromiyaa [Jil 2, Lakk 2] Oromia Law Journal [Vol 2, No.2]
international and regional human rights instruments by Ethiopia is also a

plus. To mention some: International Covenant on Economic, Social and
Cultural Rights (ESCR), Convention on the Right of Child (CRC), the
African Charter on Human and Peoples‘ Rights (ACHPR) and etc. Hence,
these human rights are part and parcel of the law of the land.4 The Bill of
rights recognized in the FDRE constitution as fundamental rights and
freedoms are bifurcated into ―Human Rights‘ on the one hand and
‗Democratic Rights‘ on the other hand. Socio-economic rights are embedded
in the latter category. The classification seems only technical since all human
rights are indivisible.5
Ethiopia has acceded to the ESCR on 11 Sep.1993 and hence, all the socio-
economic rights enunciated under the ESCR are an integral part of the law of
the land.6 On the other hand, in the legal system of Ethiopia the FDRE
Constitution is the supreme law of the land.7 All citizens and all organs of
the government, political organizations, etc have the constitutional obligation
to respect and obey the provisions of the supreme law of the land.8
The most fundamental rights for instance, the right to clean water, food etc
are impliedly protected under ―National Policy Principles and Objectives
(herein after NPPO)‘ (Art 90). It is therefore possible to boldly argue that
there are no separate and specific provisions devoted to the right to health, to
4
FDRE Constitution Art.9 (4).
5
Id, Art 10(1) of the FDRE constitution seem to consider the inalienable (indivisible) nature
of human rights and art 9(4) also plainly remedy the situation by making cross- reference to
the ACHPR which aptly maintained the notion of indivisibility and interdependency of
human rights in its preamble.
6
Gebreamlak Gebregiorgis, ‗The Incorporation and the Status International Human Rights
under the FDRE Constitution‘, Ethiopian Human Rights Law Series, Vo 1.2, Faculty of
Law, (2008), p.37.
7
FDRE Constitution Art 9(1).
8
Id, Art 9(3).
33
housing, to education, to food and to clean water expressly. The later

categories of rights are implicitly protected by the constitution.9
When we look at the right to health, there is no separate provision in the

constitution pertaining to the same right, explicitly in an avowed manner;
however, references to the right could be made indirectly to other provisions
in the constitution. Hence, the FDRE constitution enshrines socio-economic
rights both in the bill of rights and in what it calls NPPO which are important
guide line for the three organs of government.10 The implied recognition of
socio-economic rights in the supreme law of the land paves the way to look
for the derivation of rights.
1.2. FEATURES OF SOCIO-ECONOMIC RIGHTS UNDER THE

FDRE CONSTITUTION
As it has been avowedly stated herein above, socio-economic rights are
recognized and protected under the FDRE constitution. These rights include
the explicit and implied socio-economic rights. In this section, the author
will try to reveal the feature of these rights and how they are enunciated in
the same constitution that may also show whether the FDRE constitution
accorded a balanced recognition of both sets of rights. Socio-economic rights
found in the FDRE constitution are characterized by:
1.2.1. Fewer in Number

The provisions of economic and social rights enunciated in the FDRE
constitution are very scant in number when compared to civil and political
rights. There are only three articles that directly deal with these rights, but
generally the constitution is constituted of 106 articles. On the other hand
9
Dejene Girma, ‗Economic, Social and Cultural Rights and their Enforcement under the
FDRE Constitution‘, Jimma University Law Journal Vol.1, No. 2, (2008), p.74-75.
10
SisayAlemahu, ‗The Constitutional Protection of Economic and Social Rights in the
Federal Democratic Republic of Ethiopia‘, Journal of Ethiopian Law, Vol. 22, No.2, (2008),
p.138.
34
civil and political rights have a wide coverage of the constitution. This aspect
of constitutionalization of socio-economic rights reveals that socio-economic
rights are not given the same emphasis like that of civil and political rights. It
seems selective in the way it recognized these socio-economic rights. This
aptly tells us the failure of the FDRE constitution to accord a balanced
protection to the two grand categories of human rights. As T.S. Twibell said
‗Ignoring rights is not really a complex legal problem, it may be justified that
Ethiopia lacks many resources due to its underdeveloped industrial and
educational infrastructure.11However, socio-economic rights can be
negatively protected.
1.2.2. Broad and Very Vague

Despite their terseness, those socio-economic rights enunciated in the FDRE
constitutions are very broad and vague. If a certain law is broad and vague it
always opens the door for controversy and contradiction. When such rights
contested before the court of law; it is hardly possible to give content to the
contested right and remedy the situation. For instance, in Art 41(3) what does
the phrase ―publicly funded social services‖ mean? Almost all the rights
under the same articles are crude that it is difficult to identify the rights
guaranteed and the extent of protection afforded to them.12Specifically Art
41(6) and (7) do not give rise to a right based approach rather, they impose
duty on the government to ensure the enjoyment of the rights provided for in
article 41(1) and (2) recognized in crude terms.13The only possible way of
alleviating this problem is ―interpretation‖ through which it is possible to
expand the existing rights in order to cover the untouched areas of economic
and social rights. The vagueness of socio-economic rights is not the only
11
T.S. Twibell, ‗Ethiopian Constitutional Law: The Structure of the Ethiopian Government
and The New Constitutions Ability to Overcome Ethiopians Problem‘, Vol. 21, No. 399,
Loy.L.A. International and Comparative Law Journal (1999), pp.444-445.
12
Sisay at note 10, p.139 and see also Twibell at note 11, pp.442-443.
13
Dejene, supra note 9, p.83-85 and see also Sisay at note 10, pp.148.
35
feature of Ethiopian constitution, but also it is attributed to the ICESCR from

its inception, Philip Alston put this situation clearly:
It is generally agreed that the major short coming of the

existing international arrangements for the promotion of
respect for economic rights is the vagueness of many of the
rights as formulated in the covenant and the resulting lack in
the clarity as to their normative implications.14
It is possible to argue that the vagueness of the right clearly hampers the
normative development of the rights and enjoyment of the same before the
court of law.
1.2.3. Poorly Drafted

This feature is mainly attributed to the constitutionalization of some
fundamental socio-economic rights; among others, encompassing the right to
food, to clean water, to health, to social security and etc under Art 90 15 of the
constitution as ‗social objectives‘ than directly justiciable rights. Arguably,
the author boldly claims that these implied socio-economic rights are rights;
hence, they should not have been put under National Policy Principles and
Objectives which eluded their direct judicial protection. One can see and
draw adequate lessons from the constitutionalization of socio-economic
rights in the South African Constitution of 1996; in which the drafting of the
relevant provisions in the South African Bill of Rights relating to socio-
14
Philip Alston, ‗No Right to Complain About Being Poor: The Need for an Optional
Protocol to the Economic Covenant in AsbjornEide and Jain Helgesen (ed.s), The Future of
Human right protections in a Changing World: Fifty years since the four freedoms
Address-Essays in Honour of TorkelOpsah (1991), p.86.
15
Art 90(1) of the FDRE Constitution provides that: to the extend the country‘s resources
permit, policies shall aim to provide all Ethiopians access to public health and education,
clean water, housing, food and social security. It is totally a government obligation without
the corresponding individual rights and tied up by the language of progressive realization.
36
economic rights were substantially influenced by the provisions of the

ICESCR.16
1.3. JUSTICIABILITY OF ECONOMIC AND SOCIAL RIGHTS IN

THE FDRE CONSTITUTION
There exists dominant debate regarding the justiciability of socio-economic

rights.17Many legal academics hold the view that it is inappropriate to
include socio-economic rights as justiciable rights.18 But here, it is essential
to consider General Comment No. 9 of the Committee on Economic, Social
and Cultural Rights, which expresses that states parties are under obligation
to use all the means at its disposal to give effect to the rights recognized
under the covenant. In this respect, appropriate means of redress or remedies
must be available to any aggrieved individual or group.19 In addition, the
expression of the Committee is that some rights of the ICESCR are capable
of immediate implementation reveals that the rights in question are
justiciable irrespective of resource situation.20 Granting remedies for
violation of civil and political rights and putting socio-economic rights (other
half of indivisible right) beyond the reach of courts would thus be arbitrary
and incompatible with the notion of indivisibility.21
Economic and social rights as one part of the bill of rights are recognized
under the FDRE constitution. All organs of the government including
legislative, executive and judiciary at all levels, are under obligation to
16
Liebenberg, Supra note 1, pp.76.
17
Henry J. Steiner etal (ed.s), International Human Rights in Context, Law, Politics, Morals
(3rd ed.), Oxford University Press (2007), p.313.
18
Liebenberg, Supra note 1, pp.58.
19
General Comment No.9, Para. 9.
20
Ida Elisabeth Koch, ‗The Justiciability of Indivisible Rights‟, Nordic Journal of
International Law, (2003) p. 5.
21
Steiner, Supra note 17, pp.313.
37
respect and give effect to those rights provided for in the bill of rights.22
Meaning, measures taken by Ethiopia should go beyond constitutional
entrenchment that is the task of concretizing these rights and converting the
same into legally consumable commodities.23
This aspect of giving effect to the obligation undertaken in the international

treaty and constitutionally guaranteed socio-economic rights plainly binds
the judicial body to enforce and respect those fundamental rights and
freedoms. Therefore, imposing the responsibility of respecting, protecting
and fulfilling the rights, on the judiciary, has given a justiciable dimension to
these rights.24 There is also another provision under the constitution that
further rejuvenates the adjudicatory power of the court: ‗Everyone has the
right to bring a justiciable matter to, and to obtain a decision or judgment by
a court of law or any other competent body with judicial power.‘25
It is evident that a claimant can bring any justiciable matter before the
judicial body and get remedy. Here, the major issue is whether socio-
economic rights are justiciable or not under the FDRE constitution. In our
constitution the availability of socio-economic rights (as legal basis) under
the fundamental rights and freedom is a proof for the justiciability of the
same. Because the title of the chapter expresses that those rights which are
believed to be of such nature are listed therein and socio-economic rights are
one of them and subjected to some form of judicial enforcement (the setting
element of justiciability).
It is therefore possible to boldly argue that the FDRE constitution protects

economic and social rights by incorporating them in the bill of rights as
22
23
Tsegaye Regassa, ‗Making Legal Sense of Human Rights: The Judicial Role in Protecting
Human Rights in Ethiopia‘, Mizan Law Review, Vol.3, No. 2, (2009), p.289.
24
Sisay, Supra note 10, p.142.
25
38
directly justiciable as well as by making pertinent international treaties

ratified by Ethiopia part and parcel of the law of the land.26 What is
regrettable is that the claimable socio-economic rights as directly justiciable
human rights are very meager in number. To mention some:
Article 41 of the constitution is with the title of ―Economic, Social and

Cultural rights.‖ It has 9 sub-articles that deal with different socio-economic
rights. The first two sub-articles guarantee, the right to engage freely in
economic activity and to pursue a livelihood of his/her choice and the right
to choose his/her means of livelihood, occupation and profession.27 These are
a plainly guaranteed socio-economic right to work anywhere in the country
without any qualification of the type of the work as long as it is not contrary
to the law. Therefore, this right to work has a directly justiciable dimension
before Court of law.28The other directly justiciable right is under sub-article
8 of the same provision which guarantee the right to receive fair prices; that
is:
Ethiopian farmers and pastoralists have the right to receive

fair prices for their products that would lead to improvement
of their condition of life and to enable them to obtain an
equitable share of the national wealth commensurate with
their contribution. This objective shall guide the state in the
formulation of economic, social and development policies.
This right has an aim of protecting the farmer‘s and pastoralists socio-
economic rights so as to enable them to receive fair price for their products
which has the purpose of improving their living conditions. Not only this,
but it has also extended the protection of their right to property which has
26
27
See art 41(1) and (2) of the FDRE Constitution.
28
Dejene, Supra note 9, p. 91-93.
39
both the nature of civil, political and socio-economic rights. Sub-article8

further stipulates that the government should use the right to receive fair
prices as a guide in the course of formulating economic, social and
development policies.29
Sub-art 3 of the same article, however, does not provide for the right to
publicly funded social services embracing the right to health, housing, clean
water and etc, for such rights are not explicitly guaranteed rights under our
constitution and hence, they are not directly justiciable. If so, the right to
equal access to publicly funded social services is not socio-economic right.
Dejene said that ―sub- article 3 is a tricky provision…at first glance; it
appears that it grants the right to these services…does not provide for the
right to health, housing, water or electricity. In short it does not provide the
right to get social services.‖ He further argues that this sub-article does not
seem socio-economic rights but civil and political rights for it talks about the
notion of equality.30 Therefore, Art 41 except sub 1, 2 and 8 does not provide
for all rights falling within the realm of socio-economic rights in black and
white letters as one would hope by reading at its caption.31
The other directly justiciable right is provided under art 42 which protect the
right to work. It embraces rights among others, right to form associations like
trade unions, and the right to equal pay for equal work for women, the right
to strike, the right to reasonable limitation of working hours, to rest and
leisure, to leaves and etc. The first two rights have the nature of civil and
political rights, where as the latter illustrated rights are socio-economic rights
in their very nature for they do entail positive obligation of the government.32
It also accords protection to only workers who have already a job and earn
29
Id, p.88-89.
30
Id, p.86-87.
31
32
Dejene , Supra note 9, p.91-92.
40
their livelihood; however, it does not extend protection to those who are not
able to earn their livelihood. In short, it does not impose obligation on the
state to provide job for the jobless rather it protect work related rights for one
cannot forces the government to provide him a job.33
One can see the terseness of socio-economic rights guaranteed under the
FDRE constitution. Such rights even do not entail a government obligation
to ‗fulfill‘; however, to respect and protect and hence, it seems that as if the
government evaded its obligation to fulfill by exempting the right to health,
to food, to education and etc from the Bill of Rights.
Therefore, the only possible way of addressing such problems is looking for
the impliedly guaranteed rights through the derivation of rights. Socio-
economic rights are hazy under the FDRE constitution. Hence, they have to
be read into other rights expressly guaranteed so as to ensure the
justiciability of the same at the minimum threshold established independent
of resources.
1.4. INDIRECT JUSTICIABILITY: EXPLORING THE

IMPLIEDLY GUARANTEED SERUNDER THE FDRE
CONSTITUTION
Under this section, the author will delve into looking at the workability of the
indirect justiciability and also whether the FDRE constitution has
acknowledged the notion of indivisibility and interdependence of the all
human rights. Not only these two issues, but it also reveals other cross-
cutting rights enunciated in the constitution which lay the ground for the
better enjoyment of the latent socio-economic rights pre-empted in the
constitution.
33
Id, p.91, sees also Sisay, Supra note 10, p.140.
41
From the very outset the FDRE constitution maintained the inalienability or
indivisibility of human rights and fundamental freedom as the fundamental
principles of the constitution.34 That is, one can see the pre-empted notion of
indivisibility in Article 10(1) which states: ―Human rights and freedoms,
emanating from the nature of mankind, are inviolable and inalienable.‘ It is
this notion that, in a solid way, established the idea of inherence,
universality, indivisibility and inviolability of human rights. 35
The Ethiopian constitution has entrenched both socio-economic rights and

civil and political rights under the same chapter and within the same text.
This aspect of constitutionalization, putting the two sets of rights under the
same chapter and in the same text there by putting the same within the ambit
of the Court reveal the integration of human rights. That is (Art 14-43)
embodies civil, political, and very few socio-economic rights. The FDRE
constitution also protected some socio-economic matters that guarantee the
implied socio-economic rights under chapter ten. The judiciary is also
obliged to respect and enforce the provisions of the chapter of human rights
and fundamental freedoms36as well as guided by the principles embedded in
chapter ten of the constitution.37
The notion of interdependency, indivisibility and interrelatedness of human

rights in the FDRE constitution can also plainly be inferred from Art 9(4)
which makes reference to international and regional human rights treaties
34
See Art 10(1) of the FDRE Constitution.
35
Tsegaye , Supra note 23, p.301.
36
See Art13(1) of the FDRE Constitution plainly states that the judiciary as one organ of the
state, is duty bound to respect and enforce civil and political rights, including socio-
economic rights, that enable them also to have a jurisdiction over cases involving the latter
rights as well.
37
See Art 85(1) of the FDRE Constitution with no ouster clause that enunciated some, but
very important tacitly guaranteed socio-economic rights which fall within the ambit of
judiciary and judges will take the National policy principles and objective as a guideline to
give effect to some socio-economic matters enunciated therein while implementing the
constitution, other laws and public policies.
42
ratified by Ethiopia as an integral part of the law of the land. For instance,
Ethiopia acceded to the ACHPR in 1998.38
Socio-economic rights did not get a balanced protection as compared to civil

and political rights under the FDRE constitution. But, such regrettable
situations of socio-economic rights recognition can also be remedied via
cross-reference to treaties by Art 9(4). The double-edged recognition of
human rights in Ethiopia under the constitution both as part and parcel of the
law of the land and as tools of interpretation of the fundamental rights and
freedoms accords a heightened level of protection to human rights in the
country.39
The FDRE constitution refers to international treaty for interpreting bill of

rights as a guiding principle to maintain consistency with international
treaties which may help the Ethiopian courts to give content to some rights in
the FDRE Constitution. For instance, it point to the UDHR which embodies
the two grand categories of human rights. It is therefore possible to claim
that the FDRE constitution has laid down a fertile ground for the
operationalization of the indirect approach to justiciability.40
38
Accession to the African Human Rights Charter Proclamation No.114/1998, Federal
Negarit Gazeta, 4th year, No.1.
39
Taken from ‗Editorial Introduction‘, in Ethiopian Human Rights Law series, Faculty of
Law, Vol.2 (2008), P.VI and see also Art 9(4) and 13(2) of the FDRE constitution.
40
Art 13(2) of the FDRE Constitution states that; the fundamental rights and freedoms
specified in this chapter shall be interpreted in a manner conforming to the principles of
Universal Declaration of Human Rights: Here, one may easily deduce that the principles or
notions embedded in the UDHR gives equal importance to both sets of rights and according
equal treatment in one main text as indivisible and interdependent human rights. Therefore,
it implied the very principles of integrating the two grand categories of human rights
including socio-economic rights and civil and political rights, when judges consult
international treaties in elucidating their meaning to give effect to the fundamental rights and
freedoms enunciated in the chapter three of the FDRE constitution, they should also look
into the visions pre-empted in the UDHR. In short, it is integrating the two sets human rights
without any disparity.
43
The following discussion will look at cross-cutting rights entrenched in the

FDRE Constitution, that help, to explore the implicit socio-economic rights
protected in the same but not limited to the following.
1.4.1. Right to Equality or Non-Discrimination

Before dealing with this notion it is better to see the statement made by the
president of South African Constitutional Court. That is; Arthur Chaskalson,
rightly explained cross-cutting rights when describing human dignity as:
A foundational value of the constitutional order and a value

implicit in almost all the rights enumerated in the Universal
Declaration, arguing that human rights can only be protected
in a state in which there is no equality of rights but also
equality of dignity. There cannot be dignity in life without
food, housing, work and livelihood.41
As indicated herein above, Chaskalson, advocated for the protection of

socio-economic rights, that realizes the better protection of all human rights.
Ethiopia under Art 25 enunciated the right to equality in the FDRE

constitution. Hence, this article will have untold contribution in establishing
the Violation of Socio-economic rights. Meaning, the violation of a given
socio-economic rights may trample not just the specific socio-economic right
in question but also the equality clause enunciated in the constitution. In such
instances, the use of the right to equality, or, alternatively, proving
discrimination has been shown to be an essential instrument as a means of
signifying the violations of socio-economic rights.42 This is an extension of
cross-cutting right to the protection of socio-economic rights sphere, for the
41
ChidiAselmOdinkalu, ‗Analysis of paralysis or paralysis by Analysis?, Implementing
Economic, Social and Cultural Rights under the African Charter on Human and Peoples‘
Rights‘, Human Rights Quarterly, Vol. 23 (2001), p.328-329.
42
Takele Soboka, ‗The Indirect Approach to promote Justiciability of Socio-Economic
Rights of the African Charter on Human and peoples‘ Rights,‘ draft, accepted for
publication in Rachel Murray (ed.) Human Rights Litigation and the Domestication of
International Human Rights in Africa (forthcoming 2009), p.24.
44
former rights are not contested to be adjudicated before the Court. And they
can be used as a means of ensuring the justiciability of socio-economic rights
with ease. One can also infer from the ‗phrase equal accesses‘ under Art
41(3) of the FDRE constitution that ensure every Ethiopia right to equal
access to publicly funded social services. The phrase plainly makes a close
tie between socio-economic rights and equality guarantee that also overlap
with article 25.43 Thus, these articles strengthen one another in according
protection to socio-economic rights. Meaning, the government is obliged to
amend or repeal laws or policies that have the effect of marginalizing or
excluding particular groups from the enjoyment of publicly funded social
services.44
The equality guarantee in the FDRE constitution in both instances; including

Art 25 and 41(3) reveal non-discrimination in public sphere only. What if
there exists discrimination in the private sphere? This article seems
inadequate in protecting citizen‘s right to work in the private sphere which
has a direct relation with the right to life and pursue one‘s livelihood.
However, until legislation is enacted regarding this area, it would be better
for our judges to remedy the situation via cross-reference to international
treaty. For instance, art 26 of the ICCPR extends protection horizontally
(private sphere) and vertically (public sphere) which is adequate in fighting
discrimination and has myriad contribution especially in the private sphere.
Courts may also intervene and accord protection to socio-economic rights on

the ground of equality guarantee and fight discrimination in the sphere of
housing, health and water.45 Thus, one can challenge the violation of socio-
economic rights, implicitly guaranteed in the FDRE constitution before court
43
Dejene, Supra note 9, p.87.
44
Rakeb Messele, the Enforcement of Human Rights in Ethiopia: Research Subcontracted
by Action Professionals‘ Association for the People (APAP), (UN published 2002), p. 38.
45
45
of law and can claim a redress on the legal basis of equality guarantee
enshrined in the same constitution.
1.4.2. The Right to Life and Dignity

The right to life enunciated under Art 1546 of the FDRE constitution will
have a great assistance in realizing the protection of socio-economic rights
via the notion of indivisibility and interdependence of rights. There is a close
interlink between the right life and dignity with that of the right to adequate
standard of living that embody food, shelter and housing. Thus, it is possible
to argue that the right to an adequate standard of living and health is part of
the right to life and dignity.47 Such aspect of integrated approach to human
right was aptly revealed in the case of Olga Tellies and others V Bombay
Municipal Corporation and others, (AIR (1986) SC 180), Paragraph 32 as
cited in Steiner at note 17).
In that case, the Supreme Court of India stated that:
The right to life does not mean merely that life cannot
extinguished or taken away as, for example, by the imposition
and execution of the death sentence, except according to
procedure established by the law. That is but one aspect of
the right to life. An equally important facet of that right is the
right to livelihood, food, housing, water, work etc because no
person can live without the means of living. If the right to
livelihood not treated as part of the constitutional right to life,
the easiest way to deprive a person of his right to life would
be to deprive him of his livelihood to the point of abrogation.
46
Art 15 o the FDRE Constitution and art 5 of the ACHPR which is made an integral part of
the law of the land. The former deals with the right to life where as the latter deals with
human dignity and also Art 24(1) of the FDRE constitution concords with the latter concept
of right, which cannot be realized without adequate right to food, health, water and housing;
hence, ‗the right life with dignity.‘
47
Craig Scott, ‗The Interdependence and Permeability of Human Rights Norms: Towards a
Partial Fusion of the International Covenants on Human Rights‟, Osgoode Hall Law
Journal, vol. 27, No. 4 (1989),P.874.
46
Accordingly, the same Court held that, the right to life at the same time
encompasses; inter alia, the right to health, housing, clothing, food, water,
work, others and anything that enables people to have a decent life.
Therefore, it is possible to extend protection, to the socio-economic rights
that are hidden in the constitution through the interpretation of the
constitutional right to life. This will help us to reinvigorate some latent
socio-economic rights under the FDRE constitution. Thus, the right to life is
not a bare right rather it is a right to life with dignity as a human person.
When equal protection is given to both sets of rights, each right will receive
the protection of the other. For instance, state cannot realize a right to
adequate standard of living of its Citizens without according a due protection
to right to food, housing, clothing, clean water and health. The same holds
true for the right to life that appropriately depends on the right to health,
food, housing and etc. This holds true that the failure to meet these rights,
say, the right to health, and food, would inevitably jeopardize the enjoyment
of those rights, say, the right to life and dignity which are explicitly
recognized.48
1.4.3. The Right to Fair Hearing

The right to fair hearing applies across the board to civil and political rights
as well as socio-economic rights, and group rights.49 For instance, the right
to free legal assistance as a social dimension of the right to a fair trial was
given primacy by European Court of Human rights in the Airey case. The
court in the same case plainly revealed the relationship between the two sets
of rights saying ‗…many of the civil and political rights have implications of
economic and social nature… hence, the interpretation of the convention
48
Dejene, Supra note 9, p.95 and see also Scott, Supra note 47, p.875.
49
Takele, Supra note 42, p.32.
47
may extend to the sphere of socio-economic rights.‘50 Another aspect of the

protection of social and economic rights is access to courts that guarantee
citizens right to a fair and public trial. This notion is also given primacy by
the African Commission in which the Commission has thus declared the
right to fair trial to be a fundamental right; the non observance of which
undermines all other human rights.51
In case of Ethiopia Article 20(5) of the FDRE constitution guaranteed the

right to legal assistance in the circumstances the accused does not have
sufficient means to pay …will have legal attorney at the state expenses. And
art 37(1) of the same constitution stipulates the right to access to court of
every Ethiopian citizen who has a justiciable matter. In the former article it
seems narrow that it only applies to criminal cases, however, the latter
provision seems to wider than the former. If a person has a right to claim for
the right to food, but have no sufficient means pay for his private attorney,
art 20(5) shall be interpreted to embrace legal assistance in civil cases so as
to ensure the right of the victim‘s access to justice. Therefore, it is possible
to enhance the judicial protection of socio-economic rights thereby
addressing from the angle of due process of law.
1.4.4. Remedies
‗No right without remedies, no remedies without actions.‘ ‗No actions
without sanctions.‘52 This reveals that the existence of remedies has no
importance, if it cannot be demanded or enforced.53Any person or group who
50
Airey V Ireland, Cited in Martin Scheinin, ‗Economic and Social Rights as Legal Rights‟,
in Economic, Social and Cultural Rights: A text book, second Rev. edn., AsbjornEideetal
(ed.s), MartinusNijhoff publishers (2001), p.34-35.
51
Resolution on the Right to Fair Trial and Legal Assistance in Africa, Adopting the Dakar
Declaration on the Right to Fair Trial in Africa, Doc/05/26/ InF. 19, see also Scott at note
47, p.860.
52
Pieter N. Drost, Human Rights as Legal Rights, 2nd printing, A. W.
Sijthoff‘sUitgeversmij, Leiden, (1965), p. 58.
53
Ibid.
48
is a victim of an economic and social rights violation should have access to

effective judicial or other appropriate remedies at both national and
international levels.54 But, in the first place redress for violation of human
rights and fundamental freedoms should be available to victims within their
own state.55 Art 2(1) of the ICESCR proclaims that appropriate measures to
implement the covenant should be taken by states and this might include
judicial remedies. It specifically refers to non-discrimination requirement
and cross refers to the right to remedy in the covenant on civil and political
rights.56
Constitutional remedy is simply the relief that one obtains whenever these
rights expressly or impliedly guaranteed under the constitution are violated.
And the right to remedy when rights are violated is a right expressly
guaranteed by global and regional human rights instrument like for instance,
Art 8 of the UDHR and Art 2(3), 9(5), 14(6) of the ICCPR.57 The remedy
could be judicial, administrative or legislative remedy. As it was discussed in
detail on the General Comment No.9, domestic system is the primary option
for the effective protection of socio-economic rights. The role of judicial
body in protecting these groups of rights is avowedly provided under the
same that: ‗All federal and state legislative, executive and judicial organs at
all levels shall have the responsibility and duty to respect and enforce the
provision of this chapter.‘58
The responsibility is also shared among other organs of the government. For
instance, the duty of the legislature is to enact laws that ensure the better
54
Dianah Selton, Remedies in International Human Rights Law, A Text Book, Second Edn.,
Oxford University Press (2000), p.17.
55
Paul Sleghart, The International Law of Human Rights, Clarendon Press, Oxford (1992),
p.69.
56
Shelton, Supra note 54, p.18.
57
Id, p.14.
58
See Art 13(1) of the FDRE constitution.
49
protection of the rights or to amend laws that violate these rights to be

consistent with the constitutionally guaranteed human rights. Similarly, the
duty of the executive may be to enforce these rights and address them to the
needy person. The Court is therefore, bound by this article to safeguard
socio-economic rights enunciated under the constitution, in respecting,
protecting and enforcing the fundamental rights and freedoms.59 One can see
from the above wording that socio-economic rights could be subjected to
judicial scrutiny and also be provided with judicial remedy. Here, there is no
particular provision that excludes the judicial review of socio-economic
rights entrenched in the constitution. Thus, as long as socio-economic rights
are justiciable, judges have the power to decide on cases of socio-economic
rights embracing the impliedly guaranteed rights based on the legal basis of
Art 37(1) of the FDRE constitution. This is one of the constitutional remedy
for the violation of those rights provided for in the chapter of human rights
and fundamental freedoms.
1.5. RELEVANCE OF NPPO TO INDIRECT JUSTICIABILITY

OF SOCIO-ECONOMIC RIGHTS
In the foregoing discussions, it has been said that socio-economic rights
guaranteed expressly under the FDRE constitution are very few. As a result,
the need to look for the impliedly protected rights arises. We can find a
number of hidden socio-economic rights in the constitution under the
Chapter of NPPO.
In addition to incorporating socio-economic rights in the chapter of Bill of

Rights, the FDRE constitution enshrined some substantive socio-economic
matters (Implied rights), as social and economic objectives and the
principles.60 Public authorities of federal and member state government are
59
Sisay, Supra note10, p.142.
60
Rakeb, Supra note 44, p.29.
50
obliged to be guided by these principles and objectives in the implementation

of the constitution, laws and policies.61 The constitution further strengthens
that the government is duty bound to ensure that all Ethiopians get equal
opportunity to improve their economic conditions and to promote equitable
distribution of wealth among them.62 It further provides that policies aim at
providing all citizens access to health, education, clean water, housing, food
and social security.63 These NPPO are not directly justiciable; however, they
may affect the interpretation of other rights by being read into those rights.64
Therefore, these socio-economic objectives can be taken as guiding
principles in the implementation of the provision of the constitution
encompassing socio-economic rights provision. It is hence, possible to claim
that, the NPPO under chapter ten (art 89 and 90) of the constitution are
imposing other additional obligations on the part of organ of the government
to implement socio-economic rights. The fact that the constitution does not
provide for many socio-economic rights, it does not mean that the
constitution cannot be used to claim the enforcement of other latent rights
indirectly.65 Therefore, one can claim the enforcement of the right to food or
housing by invoking the constitution itself. One possible way of exercising
these rights is by trying to read the same into the explicitly protected rights.66
Note that NPPO does not take away the power of courts totally to adjudicate
socio-economic rights impliedly rooted therein in a plain wording of the
constitution. However, this induces us to look for the implied right theory in
which implicit rights can possibly be derived from explicit rights including
civil, political and socio-economic rights through indirect justiciability.
61
See FDRE Constitution Art 85 (1).
62
Id, Art 89(2).
63
Id, Art. 90(1).
64
Rakeb, supra note 44, p.29 and see also Dejene, Supra note 9, p.93-95.
65
Dejene, Supra note 9, p.93.
66
Ibid.
51
1. 5.1. Ensuring the Justiciability of Hidden Socio-Economic

Matters under the NPPO
According to the notion of implied Right theory,67 it is possible to derive,
implicit socio-economic rights from the NPPO in the constitution. The
FDRE Constitution eluded the direct protection of the right to socio-
economic rights embracing right to food, to education, to clean water and
housing. This adversely and inevitably affects the right of the beneficiaries to
boldly and effectively claim and enjoy their rights on the domestic plane.
Indirect Justiciability; however, will remedy the situation at least temporarily
to some extent. Hence, the Ethiopian constitution not only accords protection
to explicit socio-economic rights, but also to the implied socio-economic
rights.
Art 41 of the same constitution help us to derive new rights. For instance, the
phrases ―publicly funded social services‖ and ―other social services‖ of sub-
art (3) and (4) are too broad and open for interpretation. So, we can come up
with the right to housing, social security, food and clean water from the same
sub-articles.68 Referring to regional jurisprudence will also be supportive.
The most famous case in this regard is the SERAC case (Social and
Economic Right Action Center and Another V Nigeria (2001)):
In its decision the African Human Right Commission dealt

with the obligation of the state to ensure the realization (also
by private parties). The decision also considered with socio-
economic rights provided for in the African charter, and finds
some „implied socio-economic rights‟ in the charter.69
67
Heyns and Killander. (ed.s) Compendium of key Human Rights Documents of the African
Union (3rded.s), Pretoria University Press (2007), p.251.
68
Sisay at note 10, p.140, and see also Dejene at note 9, p.93-95.
69
Social and Economic Rights Action Center (SERAC) and Another V Nigeria (2001)
AHRLR 60 (ACHPR 2001), as cited in Heyns and Killander at note 67, Para. 63.
52
In this particular case, the African Commission decided that even if the right
to housing and food is not explicitly provided for in under the Charter, the
violation of these rights adversely affects the right to property, health, family
life and right to life with dignity. The same analogy could apply to the
Ethiopian situation by reading the NPPO with the fundamental rights and
freedoms.
For instance, access to food is only mentioned as part of social objectives in

the FDRE constitution rather than the right itself, despite the fact that the
right to food is not explicitly mentioned in the FDRE constitution, it is only
20 constitutions in the world which make reference to food.70 Art 90 of the
same, under the banner of social objectives, states that ―to the extent the
country‘s resources permit, policies shall aim to provide all Ethiopians with
access to public health and education, clean water, housing, food, and social
insurance.‖ Food is thus regarded as a social objective rather than a directly
justiciable human right.71 Nevertheless, this is far from saying that Ethiopia
does not have international obligation stemming from the right to food. For
instance, the country voted in favor of the UDHR in 1948 (Art 25, right to
food), as indicated earlier, Ethiopia also became state party to the ICESCR in
1993. Article11 of the ICESCR (as interpreted by ICESCR General
Comment No.12) puts duties on states to respect, protect, and fulfill the right
to food.72
Arguably, by reading the NPPO with the fundamental rights and freedoms,
the right to food could possibly be implied in the constitution and made
justiciable as the minimum core right to free citizens from hunger and
starvation. Article 43(1) which deals with the right to improved standard of
70
Alexander AttilioVadala, ‗The Right to Food in Ethiopia: Challenges and Opportunities‘,
in Ethiopian Human Rights Law series, Vol.1, No.2, Faculty of Law, (2008), p.191.
71
Id, p.192.
72
Ibid.
53
living, art 40(3-5) which covers land possession also indirectly implied the
right to food. Therefore, to the extent that these provisions allow, the
interpretation of the right to food should be construed in light of the
obligation of the Ethiopian state under the ICESCR.73
In so doing, our court can extend protection to the implied socio-economic

rights enshrined in the FDRE constitution. This will have untold contribution
in advancing the justiciability of economic and social rights on the national
fora. Not only this, but Courts can also refer to civil rights that are directly
pertaining to socio-economic rights, for example, the right to life may
comprises the right to health, food and clean water which are basic
necessities for a life.74 It is hence possible to argue that a number of
economic and social rights are blurred in the constitution which does not
give rise to direct justiciability and enjoyment of the same. Thus, the Court
should read into the explicitly recognized civil and political rights including
right to life, honor, security of a person and some few socio-economic rights
within the same family entrenched in our constitution.75 In such instances,
the means to resolve the same problem is ―interpretation‖ through which it is
possible to expand the existing rights in order to cover the untouched
boundaries of socio-economic rights.
1. 6. CHALLENGES TO THE DIRECT ADJUDICATION OF

SOCIO-ECONOMIC RIGHTS IN THE FDRE
CONSTITUTION
In this section, the author will try to reveal factors contributing to the
underdeveloped local jurisprudence on the justiciability issue in the FDRE
73
Id, p.193.
74
Liebenberg at note 1, p.69.
75
Id, pp.71-73.
54
constitution. There are some challenges to direct adjudication of socio-

economic rights, but not only limited to the following grounds:
1. 6.1. Vagueness and Generality of the Constitution Regarding SER
It is plain that whenever there is a vague provision in relation to a certain

right in the constitution, courts face difficulty in adjudicating the matter and
to give a concrete remedy to the right in question. An interview made with
Nega Dufisa judge at Oromia Supreme court reveals one of the blame to the
constitution which is the source of controversy regarding the ingrained socio-
economic rights. That is they are too broad and vague and difficult to give
content and determine the scope of their protection.76 Hence, the author
firmly believes that the only means of alleviating this challenge, until
legislation is enacted; is interpretation, to give content to some socio-
economic rights. For instance, the right to clean water is lacking under
chapter three of the constitution, thus it need a generous interpretation of the
constitution dealing with NPPO and publicly funded social services. Thus,
the court should accept it with an open mind and ready to do so. 77 The other
aspect can also be deduced from Art 41(5) of the constitution which only
talks about duty bearer, but not about the right holder which aptly reveal that
it is poorly crafted, because it does not give rise to a right and undermines
their justiciability.78
76
Interview with Nega Dufisa Judge of Oromiya Supreme Court, on October 8/10/2011.
77
Interview with Tadele Nagisho, President of Supreme Court of Oromiya, on October
11/10/2011.
78
Said that majority of the articles dealing with socio-economic rights are not framed as
claimable individual rights; rather as duty of the government which also receives ‗ever
increasing resource,‘ hence, the obligation of the government cannot be easily made
justiciable rights.
55
1.6.2. Absence of Subordinate Legislation

Legislation has been central to most national and international efforts to
define and implement human rights. The notion of formulating human rights
claims as legal claims and pursuing human rights objectives through legal
mechanisms is pivotal for effective implementation and enforcement of
socio-economic rights within domestic jurisdictions.79 Article 2(1) of the
ICESCR also places particular emphasis in the adoption of legislative
measures to achieve the realization of the rights recognized in the covenant.
The Committee on Economic, Social and Cultural Rights recognizes that ‗in
many instances legislation is highly desirable and in some cases may even be
indispensable in making socio-economic rights justiciable.‘80 To mention
some of them it serves as providing a more precise, detailed definition of the
scope and content of the rights encountered in the international human rights
instruments and national constitution. For instance, legislation is needed to
elaborate on the concept of ‗adequate housing‘ in Art 11 of the CESCR81 and
the same is true for Art 43(1) of the FDRE constitution that elaborating the
concept of ―improved living standards‖ is possible through legislation.
Legislation is also essential in stipulating the financial arrangements for the
delivery of the rights, prescribing the exact responsibilities and functions of
the different spheres of government at every level to give effect to the rights.
And creating a coherent and coordinated institutional framework for the
delivery of the rights; preventing and prohibiting violations of the right by
79
Jack Donnely, ‗The Virtues of legalization‘, in the Legalization of Human Rights, Multi
Disciplinary Perspectives on Human Rights and Human Rights Law, Saladin Meckled and
Basak Garcia (eds.), Landon and New York, Routledge Tylor and Francis Group (2006),
p.68, See also Liebenberg, Supra note 1, p.79.
80
See General Comment No. 3, Para.3.
81
Liebenberg, Supra note 1, p.79.
56
both public official and private parties and providing concrete remedies to
redress violations of the rights.82
The demands of most human rights advocates and victims of human rights
violations typically involve either direct or indirect appeals for effective legal
protection or redress.83 The advantage of legislation is that it is usually more
detailed and specific than open-textured constitutional norms.84 Thus, the
task of concretizing these vague and general rights in the constitution and
international human rights adopted by Ethiopia and converting the same into
legally consumable commodities arises. And hence, legislation can play an
important role in ensuring that both the public and private sector respect
these prohibitions and by providing effective, accessible remedies in the
domestic fora.85
For instance, Ethiopia gave effect to the constitutionally entrenched right to

work or labour86 with Labour Proclamation that embrace around 191 detailed
and specific articles. And Art 41(5) of the constitution is also specifically
addressed by legislation in relation to persons with disabilities87by the
proclamation that embodies 14 articles totally. It is enacted to enhance the
82
Ibid.
83
Donnely, Supra note 79, p.77.
84
85
Tsegaye, Supra note 23, p.289, see also Liebenberg, Supra note 1, p.78.
86
Labour Proclamation No. 377/2003, Neg. Gaz. 3. 10th year, No.12, 2004.For instance, the
Preamble of the proclamation Para. 1 reads that: ‗…is necessary to guarantee the right of the
workers and employers; and the 3rd paragraph states the rights of workers to, health and
safety, working condition and work environment. It is further elucidated under Para.4 that
―The proclamation was enacted by taking account into the Political, Social and Economic
policies of the government and to be consistent with International Conventions and other
legal commitments (including, may be Constitution art. 42, 35(5), (a), (b) (8)) to which
Ethiopia is a party with a view to translating into practice. It is hence, avowed that one can
see, the importance of legislation in giving effect to vague and too general Constitutionally
enunciated socio-economic rights including International Human Rights ratified by Ethiopia
as per art 9(4) if they are vague.
87
Right to Employment of Persons with Disability, Proclamation No. 568/2008, Neg.
Gaz.14th year, No. 20, 2008.
57
employment opportunities of persons with disabilities on equal manner and

is designed to prohibit discrimination on the ground of their status which is
lacking directly under article 25, 42, 41(3), and 35(8) of the FDRE
constitution.88 Besides that, the proclamation seems to convert the duty of
the government under art 41(5) of the constitution.89 It also provides for the
rights of persons with disability to reasonable accommodation,90 to occupy a
vacant post in any office,91 to participate in a training programme92 and
preferences93 are given to them. One can see the importance of legislation in
giving content to some socio-economic rights that are vague and too broad
and it can also clearly set concrete remedies as evidenced in the above
proclamations. Thus, legislation is undoubtedly instrumental in ensuring the
justiciability and enjoyment of the right to work and wok related rights when
infringed by the government or private parties.
It can also be argued that the constitution merely requires more definitive
legislation and that when such a governmental prerogative is rooted in the
constitution. These socio-economic rights are, however, simply too broad
and vague to form the basis for more detailed legislation. 94 Therefore, the
absences of subordinate legislation aptly impaired the adjudication of socio-
economic rights and claim a remedy. Tsegaye also argues that in the course
of protecting human rights, including socio-economic rights in domestic
fora, the tasks that are involved can thus be summarized as follows,
‗constitutional guarantee‘, ‗legislative protection‘, ‗judicial application‘ and
88
Id, Art 2(4) and Para. 3.
89
From duty of the government under Art 41(3) to the Right of the disabled persons to
employment.
90
Id, see Art 2(5) and Para.2 of proc. No. 568/2008.
91
Id, 4(1), (a).
92
Id, 41(b).
93
Id, 4(2).
94
Twibell, Supra note 11, p.441-442.
58
‗executive implementation.‘95 Thus, one can see that the role of legislation in
according protection to constitutionally guaranteed socio-economic rights to
get application before a court of law and an enabling tool for citizens to
claim and enjoy their constitutional rights. Unless, constitutionally
guaranteed vague and general socio-economic rights are backed by
legislation, their direct enjoyment remains a mere wish which can never be
realized. Hence, legislative protection ensures that state usually incurs the
duty to proscribe any act or omission that poses a threat to rights.96 For
instance, accessible and effective national remedies are the primary means of
protecting economic and social rights.97 Constitutional incorporation of
socio-economic rights does not by itself ensure compliance. States are
required to ensure appropriate mechanisms for redressing violations of these
rights through legislation.98 Thus, legislation is crucial in concretizing the
exact remedies in the domestic plane so as to enable the victim to get an easy
access to the court of law and enjoy his/her right.
1.6.3. Absence of Cases

This is particularly related to the specific individual claims that might arise
in relation to the enjoyment of socio-economic rights in particular states.
And this is also pertains to lack of normative development.99 Meaning, the
idea of case law is mainly attached to the absence of law (i.e. an absence of
case law frequently being equated with an absence of law).100There is no
robust adjudication of socio-economic rights cases at local court that really
did call for national appreciation and scholarly discussion in our national
95
Tsegaye, Supra note 23, p.307.
96
Id, p.308.
97
98
Mathew Craven, ‗The UN Committee on Economic, Social and Cultural Rights‘, in
Economic, Social and Cultural Rights: A text book second revised ed. A. Eideetal (ed.),
MartinusNijhoff Publishers (2001), p.456 and See also Shelton at note 54, p.8-9.
99
Id, p.467.
100
Ibid.
59
fora.101 This evidences the underdeveloped jurisprudence of our local courts

on these rights.
1.6.4. Courts Lack Jurisdiction

In relation to the problem with poor legislative drafting, courts lack
jurisdiction to directly adjudicate those implied socio-economic rights
enshrined under chapter ten of the FDRE Constitution. This is because these
rights are only the guideline for the organs of the government and are not
directly justiciable rights which lead to the incapacity of the courts to deal
with directly, thus judges should look for indirect justiciability.
1.6.5. Constitutional Reference by Judges

There is also a problem that most of our judges abstain from referring to
constitutional provisions because they believe that constitutional matters are
under the mandate of the House of Federation (HOF).102 They refer to Art 83
and 84 of the constitution and argue that it is the HOF that has the duty to
deal with constitutional interpretation. And also they justify that involving in
such matters is trespassing into other organs duty which politicizes the
judiciary; hence, judges should be neutral and should retreat from delving
into politics.103 But, with the author‘s view this is not a problem because Art
83 and 84 are about constitutional disputes, but referring to constitutional
provision is not a task of interpretation. A reference to constitutional
provisions has to be made because there are no legislations that elaborate
socio-economic rights guaranteed by the constitution. In addition,
adjudicating socio-economic rights is not delving into politics, for instance,
if a reference is made to the General Comment No.3, paragraph10, of the UN
which states that ―a minimum core obligation to ensure the satisfaction of at
101
Interview with Almawu Wole, Judge of Federal Supreme Court Cassation Division on
Oct.20/10/2011.
102
Ibid and See also Tadele,Supra note 77
103
Tadele, Supra note 77, See also Nega, Supra note 76.
60
the very least, minimum essential level of each of the rights is incumbent on
every state party.‖ Thus, giving power for courts to handle these cases is not
involving them into the duty of others organ, rather letting them do what they
are legally empowered to do.104 Also a recent UN publication noted that ‗it is
not primarily the nature of economic and social rights that denies judicial
enforcement but the lack of competence or willingness of the adjudicating
body to entertain, examine and pronounce on claims affecting these
rights.‘105 Therefore, it is primarily the failure of national courts to give
judicial consideration to economic and social rights, which has meant that
those rights have remained largely meaningless in practice.106 It is the
constitutional duty of our courts to identify ways or means and devise the
mechanism of ensuring the justiciability and enforcement of international
and constitutionally entrenched socio-economic rights on the domestic arena.
1.6.6. Lack of Awareness

This factor is attributed to both judges and the public at large. As has been
discussed earlier, the FDRE constitution has only entrenched very few socio-
economic rights as directly justiciable rights. The impliedly guaranteed
socio-economic rights are far from judicial scrutiny. The public, including,
judges are not aware of the existence of justiciable socio-economic rights.107
This clearly impairs citizens to boldly claim their rights. Hence, it is the duty
of the government, to enhance the awareness of citizens through promotion
104
See art 9(2), judges have duty to obey and ensure the supremacy of the constitution, Art
13(1) and (3), empower judges to respect and enforce and even interpret the constitutions in
light of international human rights instruments to which Ethiopia is party and art 9(4) further
enable courts to boldly cross-refer to ratified treaties and entertain cases involving socio-
economic rights, but not yet done by our courts in the area of socio-economic rights.
105
Fons Coomans, ‗Some Introductory Remarks on the Justiciablity of Economic and Social
Rights in comparative constitutional context‘, in Justiciability of Economic and Social
Rights: Experiences from Domestic System: A textbook, FonsCoomans (ed.), Intersentia
(2006), p.3.
106
Ibid.
107
Tadele, Supra not 77, see also Nega, Supra note 76 and Almawu, Supra note 101.
61
that help them to claim their constitutionally and internationally108

guaranteed socio-economic rights. The citizens should first claim their right,
and then judges will play their second role in the adjudication of the victim‘s
right to food, health, work, education.
1.6.7. Demanding Nature of the Rights

It is submitted that socio-economic rights are demanding rights; meaning,
they are resource dependent at their fulfillment stage, which is also
undoubtedly true for civil and political rights.109 This notion is clearly related
to the above ground, for the judges with whom I made an interview answered
me that socio-economic need state action, which seem to blurred their eyes,
to look at them from other duty of the state to respect and protect which are
resource independent. For instance, socio-economic rights could be
negatively protected, that is prohibiting unlawful eviction (duty to respect on
the part of the state) and protecting against others (duty to protect against
third party.)110
Thus, the duty to respect and protect are not resource demanding, however,
the judges failed to draw a clear line among the duties incumbent up on state
parties to ICESCR. It is avowed that the language of progressive realization
of the rights set forth in the covenant should depend entirely on the resources
availability of a state, and should not be invoked by states as grounds for
failing to implement a right when resources were available. Hence, care
should be taken not to distort the meaning attached to the language of
108
Art 9(4) the FDRE constitution remedy the situation, when there is terseness of the
existing economic and social rights, hence, ICESCR, CRC, ACHPR are part and parcel of
the law of the land.
109
Koch, Supra note 20, p.3-4.
110
Scott Leckie, ‗the Human right to Adequate Housing‟, in Economic, Social and Cultural
Rights: A Text book second revised edition, A. Eideetal (ed.s), MartinusNijhoff Publishers
(2001), pp155-156.
62
―progressive realization‖ which by itself has a limitation.111 The other issue

is that minimum threshold, is an immediate obligation that can be enforced
and guilty of states in such instances are established independent of
resources.112 It is clear therefore that Ethiopian courts should boldly move
towards enforcing these rights. In doing so, the country has to exhaust the
available resources and even in the absence of resources should claim for
international assistance and cooperation.113 Simply blaming socio-economic
rights only on the demanding nature of the rights, by putting aside the other
duty of a state cannot relief the state from responsibility. Thus, socio-
economic rights should not be seen only from duty ‗to fulfill‘ angle rather
other duties of the state to ‗respect‘ and to ‗protect‘ should also be taken into
account.
Here in above, it has been well elucidated that there are factors contributing
to the underdeveloped judicial scrutiny of economic and social rights. This
problem will be alleviated using the indirect justiciability temporarily. It is
thus better to look at whether our courts have played any role to boost the
justiciability of socio-economic rights using their constitutional mandate.
The role of courts in the enforcement of human rights enunciated in the

constitution is one of the controversial issues in Ethiopia.114 Yet, it is
promising that the Federal Supreme Court Cassation Division has in the case
111
Philip Alston and Gerard Quinn, ‗The Nature and Scope of State Parties Obligations
under the International Covenant on Economic, Social and Cultural Rights‟, Human Rights
Quarterly, Vol. 9 (1987), p.174.
112
See General Comment No.3, Para. 10.
113
Mathew C.R Craven, The International Covenant on Economic, Social and Cultural
rights: A perspectives on its Development, Claredon Press, Oxford (1995), p.141.
114
AssefaFiseha, ‗The Concept of Separation of Powers and Its Impact on the Role of
Judiciary in Ethiopia‘, in Ethiopia Constitutional Law Series Vol. III, Faculty of Law,
(2010), p.24.
63
of Tsedale Demise V Kifle Demise115 boldly interpreted expansively best

interest of child clause of the supreme law of the land and the Child Rights
Convention. And also in the case of AbaditLemlem V Municipal City of
Zalanbasa and others116 the same Court in the cassation division,
courageously decided on the issue of justiciability of ‗right to housing‘117in
which the court protected the victim from unlawful interference on the side
of the government and private party; however, it did not directly refer to
provisions dealing with socio-economic constitutional provisions, but
decided the case on the basis of art 79(2) and 37 of the FDRE constitution. It
is whether the issue is a justiciable matter or not pertaining to the decision of
the lower Court (Tigrai Supreme Court‘s decision). It gives us a quick glance
that to note the statement made by the lower court and how they viewed
socio-economic rights that is: ―one cannot get house and money from the
government and the matter is clearly administrative matter, hence, cannot be
seen by regular courts.‖118
One can see that, how the Tigrai Supreme Court willingly relinquished its
constitutional mandate.119 It is therefore, possible to argue that judges are
retreating from adjudicating or applying constitutional provisions to the
contrary what the constitution itself provides.120 However, the court seemed
115
Tsedale Demise V. Kifle Demise Federal Supreme Court Cassation Division File No.
23632(2000).
116
Abadit LemlemV.MunicipalCity of Zalanbasa and Others Federal Supreme Court
Cassation Division File No 48217(2003).
117
‗Right to housing‘ is used by the author and not directly pointed out as of ‗right to
housing‘ by the Cassation Division, still this shows there is a retreat by judges to boldly
claim the right as directly justiciable. This can be inferred from the failure of judges to cite
the provision that directly addresses the issue as well. However, by any means the decision
of the cassation division vindicated the victim to claim back her money and house snatched
by the municipal city officials and third party (private persons). (File N0.48217/2003).
118
See at note 116, File No 48217(2003).
119
Takele Soboka, ‗Judicial Referral of Constitutional Disputes in Ethiopia: from Practice to
Theory‘, in Ethiopia Constitutional Law Series, Vol. 3, Faculty of Law, (2010), p.74.
120
Art 10, 13(1) of the FDRE Constitution aptly tells us that the court at least, has a role in
interpreting the provisions of human rights entrenched in the constitution.
64
to have been overly willing to restrict its own jurisdiction, and ignored cases
that squarely fall in its normal adjudicative power.121 The judiciary‘s duty in
‗respecting and enforcing‘ the rights and freedoms cannot be meaningfully
enjoyed by the right holders unless it is involved in interpreting the scope
and limitation of those rights.122 Besides, the existing means that may help
the court to enhance the justiciability of economic and social rights they are
not boldly utilizing the potential of integrated approach. Therefore, courts
need to be bold enough to keep doing what it can respect, protect, promote
and fulfill in the field of all human rights.123
This could be done through; first, courts should utilize the indirect approach
to justiciability. Second, they should shoulder their constitutional obligation.
Finally, they should draw lessons from others jurisdictions jurisprudence, if
it is of great importance in enhancing the justiciability of socio-economic
rights. Our courts are not utilizing the indirect approach to justiciability124 so
as to enhance the justiciability of the rights in their day to day activities. This
was due to the belief that making socio-economic rights justiciable as
claimable individual right seem to imposing unbearable burden on the
government.125 This can be evidenced and rebutted that other civil and
political rights have budgetary implication, for instance, right to voting,126
fair trial; legal assistance and etc are rights that need positive state actions at
their fulfillment level.127 And also judicial application of these rights gives
121
Takele, Supra note 119, p.74.
122
Assefa, Supra note 114, p.25.
123
124
Tadele, Supra note 77 and Almawu, Supra note 101.
125
Ibid, see also Tsegaye, Supra note 23, p.309.
126
Ethiopia in the 2010 ―National Election‖ invested 189.5 million Ethiopian birr, to ‗fulfill‘
the ―right to vote‖ of its citizen at large, from Ethiopian Television at 7:00 PM, May 2010.
127
Liebenberg, Supra note 1, p.58, See also Koch, Supra note 20, p.3.
65
an assurance that in cases of violations; there is a possible remedy by taking

one‘s cases to courts.128
1.7. DRAWING ADEQUATE LESSONS FROM THE

JURISPRUDENCE OF OTHER JURISDICTIONS: THROUGH
CONSTITUTIONAL REFERENCE TO INTERNATIONAL
TREATIES
This section is devoted to explain and reveal what lessons can be learnt from
the jurisprudence of other jurisdictions for general discussion about socio-
economic rights. In doing so, it will attempt to address the issue that whether
the Ethiopian courts can draw inspirations from other jurisdictions‘
jurisprudence. There is sound justifications for courts to draw inspiration in
the interpretation of Bill of Rights and substantial benefit derived from such
an approach. This notion is rightly put by Rudolf Von Jhering as follows:
The reception of foreign legal institution is not a matter of

nationality, but of usefulness and need. No one bothers to
fetch a thing from a far when he has one as good or better at
home, but only a fool would refuse quinine just because it did
not grow in his back garden.129
As has been discussed in the foregoing sections the FDRE constitution is not
comprehensive for there are some socio-economic rights missing from. One
can thus easily deduce from the above statement that the need for analogies
arise because they help courts to elucidate the scope and content of a certain
vague right in question. In doing so, courts better understand their
constitutional system that is; it may identify a doctrine of foreign law and
128
129
Rudolf Von jhering, geist des römischenrechts auf den verschiedenenstufen
seiner Entwicklung [the spirit of Roman law at different stages of its development], part i, 8f
(b.schwabe 9th ed. 1955), cited in Jack Tsen-Talee, Interpreting bill of rights: The value of a
comparative approach, Vol. 5, No.1, Oxford University Press and New York University
Press (2007), p.122.
66
apply it in articulating the meaning and text of a domestic bill of rights, with
suitable modifications if necessary.130
The interplay between domestic and international law depicts a relationship

of dependence of the latter on the former for its implementation. Thus, the
domestic legal system must provide a conducive legislative, judicial and
administrative framework if treaty-based guarantee are to be translated into
reality for domestic beneficiaries.131 International law complements and
overrides contrary domestic law in matters involving the protection of human
and peoples‘ rights. There is, therefore, a need to bring domestic legislation,
administrative rules and practices into concordance with international
treaties.132 This aspect of conformity is truly evidenced by Art. 13(2) of the
constitution which obliges courts to interpret the bill of rights text in
conformity with international human right treaties ratified by Ethiopia. The
only benchmark to be met by treaties to be part of Ethiopian law is their
ratification by the House of Peoples‘ Representatives. The notion that law
passed by the same house will have a legal effect irrespective of their signing
by the president warrant the conclusion that the publication, which is made
after signature is one of formality but not mandatory precondition of
validity.133 It is therefore possible to conclude that the only vital procedure
for the incorporation of the international and regional treaties in the
Ethiopian law is ratification.134 This paves the way for our courts to directly
apply ratified treaties made part and parcel of the law of the land.135
130
Id, p.130.
131
Takele Soboka, ‗The Monist-Dualist Divide and the Supremacy Clause: Revisiting the
Status of Human Rights Treaties in Ethiopia‘, Journal of Ethiopian Law, Vol.23, No.1,
(2009), p.138.
132
Id, p.141.
133
Gebreamlak, supra note 6 p.45 and See also Sisay, Supra note 10, p.147.
134
Ibid.
135
Sisay, Supra note 10, p.147
67
By cross-reference, the Ethiopian court will alleviate the problems

surrounding the fact that socio-economic rights provision of the constitution
are very scant, vague or too general in their formulation.136 Ethiopia has
ratified a number of international and regional human rights treaties which
explicitly recognizes the right to health, education, food, adequate standard
of living; among others, including UDHR, ICESCR, ACHPR, CRC,
ACWRC and etc. Above all, the constitution bolsters that these treaties shall
be utilized as a guideline for interpretation in maintaining the uniformity of
the Bill of Rights text with.
It is the power of courts to interpret rights, to decide their exact content and
treaty provisions, this was further rejuvenated by art 3(1) of Federal Courts
Proclamation that stipulates ‗federal courts shall have jurisdiction over
international treaties and settle disputes on the basis of the same.‘137 This
Proclamation further bolsters and extends the jurisdiction of Ethiopian
Courts to apply international and regional human rights treaties ratified by
Ethiopia. This aspect of cross-reference to international treaties via art 9(4)
of the constitution was well grounded in the case of Tsedale Demise V Kifle
138
Demise; the Federal Supreme Court expansively interpreted the best
interest of the child by directly applying art 3(1) of CRC and 36(2) of the
constitution and vindicates the victim.
One can boldly claim that the argument that a treaty ratified should be
published in the Negarit Gazeta to be implemented and claimed is rebutted
by the Federal Supreme Court cassation division in the decision of the above
case. It further reveals the realization of the duty of the judiciary to enforce
those fundamental rights and freedoms in Bill of Rights text through judicial
136
Id, p.1 48.
137
Federal Courts Proclamation, No. 25/1996, Federal Neg. gaz. 2 nd year, No, 13, Addis
Ababa (1996).
138
See, supra note 115 and see also Assefa, Supra note 114, p.24-25.
68
application.139 The direct incorporation or application of international

instruments recognizing socio-economic rights within the domestic legal
order can significantly enhance the scope and effectiveness of remedial
measures and should be encouraged in all cases.140
The following discussion will point out some instances in which courts
should refer to international treaties.
1.7.1. Providing Remedies

The power of the courts to grant, any order; that is, just and equitable, paves
the way for the developments of a number of creative remedies. This is to
redress violations of socio-economic rights.141 However, the Ethiopian
constitution on the issue of substantive remedy is silent; hence, the need for
drawing inspiration arises in such instances. Thus, Courts should look into
the other means remedy via cross reference. There are also a number of
Comments on ICESCR which are used as an authoritative interpretation
guideline. For instance, General Comment No.9 avowedly stated that states
have to take legislative, administrative and judicial remedy to redress
violation of socio-economic rights. This enables our courts to turn human
rights (socio-economic rights specially) from mere rhetoric to legally
claimable rights.142 ‗Everyone should have the right to an effective remedy in
case of an alleged violation of his/her fundamental rights as laid down in Art
8 of the UDHR.‖ ―At the minimum, national judiciaries should consider the
139
Sisay, Supra note10, p.142; see also art 13(1) of the FDRE constitution.
140
_________ „The Maastricht Guidelines on Violation of Economic, Social and Cultural
Rights‘, Human Rights Quarterly, Vol.20, (1998), Rule 26, Art 9(4) of Ethiopian
Constitution rejuvenates this approach by making international and regional human rights
instruments part and parcel of the law of the land and putting them within the ambit of the
judiciary, this undoubtedly enhance socio-economic rights justiciability and enforceability(
art 13(1) )of the same and art 3(1) of federal courts proclamation also strengthen the same
concept.
141
142
Tsegaye, Supra note 23. P.312.
69
relevant provisions of international and regional human right laws as an

interpretative aid in formulating any decisions that are pertaining to
violations of socio-economic rights.‖143
The other means of ensuring constitutional remedy is through referring to

civil and political rights by courts at the time of adjudicating cases on
violation of socio-economic rights. In this case most of civil and political
rights are dependent on the fulfillment of economic and social rights. For
instance, the most fundamental right i.e. right to life to be enjoyed one has to
have best attainable mental and physical health and also to have this health
status one has to at least get access to adequate food, clean water and shelter
because without the fulfillment of these rights, it is more unlikely to survive.
This is also what has been revealed by the South African Constitutional
Court in the case between the governments of South Africa v Grootboom.144
The same court also has drawn inspiration from the General Comment of the
Committee on Economic, Social and Cultural Rights and the ICESCR
provision relating to the right to housing.145 Therefore, Ethiopian courts in
interpreting the constitutionally guaranteed socio-economic rights should
consult the ICESCR, ACHPR and other international instruments so as to
give effect to treaty-based obligation. This enables the courts to give
concrete remedies by referring to both international and regional human
rights texts ratified by Ethiopia.
1.7.2. Norm Clarification

It is plain that as Bill of Rights are often embody broad statements of
principle; it is arguably imprecise to conclude that foreign law can shed no
143
See the Maastricht Guidelines at note 140, Rule 24.
144
HlakoChoma, ‗Constitutional Enforcement of Socio-Economic Rights‘(South African
case study) School of Law University of Venda, Thohoyandou 0950, south Africa, Vol.6,
No.6(serial No.55) US-China Law Review (2009), ISSN 1548-6605, USA, p.44, for further
reference see also Constitutional Court of South African Case CCT 11/00).
145
Ibid and see also Steiner, Supra note 9, p.333-339.
70
light on their text.146 The ICESCR and other regional and international
treaties protecting socio-economic rights may be a source of interpretation
for relevant constitutional norms.147 The Committee on Economic, Social
and Cultural Rights developed a number of General Comments on the issues
of substance, namely, the right to housing, food, forced evictions, the right of
persons with disabilities, the right of the elderly, the right to health and two
on the right to education. These all were developed as a result of the
Committee‘s perception of the difficulties facing states in the
implementation of the rights in question. This is hence aimed at assisting
state party to the ICESCR and other bodies in the implementation of the
same. Thus, the General Comment has been the principal tool for normative
development of socio-economic rights.148 It therefore help national
judiciaries to determine the scope and content of the rights protected under
the constitution.149
In Ethiopia under art 43(1) one can indirectly claim the right to food which
deals with the right to improved standard of living and also art 41 which
generally talks about socio-economic rights. If Courts face difficulty in the
normative content of the rights and their scope of protection they can refer to
the Committee‘s normative development which are authoritative
interpretation that serve as a guideline though not binding. This entirely
depends on the attitude of judges toward self-executing nature of
international and regional human rights treaties. Article 9 (4), 13(1), (2) of
the FDRE constitution and Art 3(1) of Federal courts proclamation plainly
remedy the situation.
146
Von Jhering, Supra note, 129, p.129.
147
148
Mathew Craven, ‗The UN Committee on Economic, Social and Cultural Rights‘, in
Economic, Social and Cultural Rights: A text book second revised ed. A. Eideetal (ed.),
MartinusNijhoff Publishers (2001), p.468.
149
Id, P.469.
71
General Comment No. 12 claims for state to protect, promote, respect and
fulfill the right to food. It is therefore possible to boldly claim that making
cross-reference so as to draw inspiration from international and regional
human rights treaties in such instances by Ethiopian courts to vindicate the
victims of violation.150 This inspiration has much help for our courts to
afford an adequate protection to the citizens to whom the right is guaranteed
and makes a judicial sense of human rights.151
A sort of relevance exists between the Ethiopian constitution and

international and regional human rights that induces the Ethiopian courts to
import a comparative jurisprudence and apply it. That is for instance,
interpretation should be made in consonant with the ratified treaties which is
designed to maintain a sort of similarity and better protection of the rights on
the domestic fora. That is the ‗permissible clause‘ one can comprehend from
art 9(4) and 13(1) and (2) of the FDRE Constitution.
The UN Committee on Economic, Social and Cultural Rights further argued

that:
Legally binding international standards should be operated

directly and immediately within the domestic legal system of
each state party there by enabling individuals to seek
enforcement of their rights before national courts and
tribunals.152
Therefore, arguably, the Ethiopian courts as per art 9(4) and 13(1) and (2) of
the constitution are justified and hence, the FDRE constitution provided a
workable environment for our courts to draw inspirations from other
jurisdictions‘ jurisprudence.
150
Id, P.192.
151
152
See General Comment No.9, Para. 4.
72
1.8. CONCLUSIONS AND RECOMMENDATIONS
In conclusion, economic and social rights are newly emerging areas of

human rights that developed at the international arena and far from judicial
scrutiny. However, these rights are about the well being of an individual and
even are basic rights for the realization of civil and political rights. For
instance, a starving man does not care about voting and seeking information.
The protection accorded to one set of the rights directly enhances the
enjoyment of other categories of rights. By the same token, when a certain
right is deprived, it undoubtedly marginalizes the enjoyment of the other
categories of rights.
The FDRE Constitution has ingrained a very scant number of socio-

economic rights as directly justiciable human rights. It also seemed too
adhered, towards civil and political rights, thus one can safely say that there
is no balanced protection accorded to both sets of rights i.e. the FDRE
constitution seems selective in the recognition of socio-economic rights. This
aspect of Selective justiciability eludes the direct protection of classical
socio-economic rights.
Courts‘ lack jurisdiction to directly adjudicate socio-economic matters under

NPPO that embraces implied socio-economic rights and failed to see the
means enshrined in the constitution.
Accordingly, specialized trainings on indirect justiciablity socio-economic

rights protected by the constitution and ratified treaties should be arranged
and given for judges and lawyers of the country.
73
Ethiopian judges should also approach economic and social rights from the
civil and political rights dimensions that will help to elucidate the scope of
protection and clarify the content of these rights in the FDRE Constitution.
Judicial activism by the Ethiopian judges should be courageously claimed so

as to realize the constitutionally guaranteed rights of citizens.
The other basic obstacle to the direct justiciability of socio-economic rights

is lack of subordinate legislation. Therefore, there should be subordinate
legislation for the following reasons:
 To give effect to the treaty-based obligation.
 To give content and determine the scope of protection of the

vaguely worded constitutional socio-economic rights.
 To enhance the protection of socio-economic rights.
 To provide with concrete remedies in case of violation of

the rights in question established by the victim.
Judges should also refer to constitutional and treaty-based human rights

guaranteed to the beneficiaries when the need arises in order to dispose the
case at hand and remedy the victim without retreating from constitutional
interpretation in the areas of chapter three. This would have countless
contribution in utilizing the indirect justiciability which boosts the
justiciability of socio-economic rights.
74

Derivation of Rights: Affording Protection To Latent Socio-Economic Rights in The Fdre Constitution Amsalu Darge Mayessa

Uploaded by

Copyright:

Available Formats

Derivation of Rights: Affording Protection To Latent Socio-Economic Rights in The Fdre Constitution Amsalu Darge Mayessa

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Derivation of Rights: Affording Protection To Latent Socio-Economic Rights in The Fdre Constitution Amsalu Darge Mayessa

Uploaded by

Copyright:

Available Formats

DERIVATION OF RIGHTS: AFFORDING PROTECTION TO

LATENT SOCIO-ECONOMIC RIGHTS IN THE FDRE

Amsalu Darge Mayessa★

international and regional human rights instruments by Ethiopia is also a

housing, to education, to food and to clean water expressly. The later

When we look at the right to health, there is no separate provision in the

1.2. FEATURES OF SOCIO-ECONOMIC RIGHTS UNDER THE

1.2.1. Fewer in Number

1.2.2. Broad and Very Vague

feature of Ethiopian constitution, but also it is attributed to the ICESCR from

It is generally agreed that the major short coming of the

1.2.3. Poorly Drafted

economic rights were substantially influenced by the provisions of the

1.3. JUSTICIABILITY OF ECONOMIC AND SOCIAL RIGHTS IN

There exists dominant debate regarding the justiciability of socio-economic

This aspect of giving effect to the obligation undertaken in the international

It is therefore possible to boldly argue that the FDRE constitution protects

directly justiciable as well as by making pertinent international treaties

Article 41 of the constitution is with the title of ―Economic, Social and

Ethiopian farmers and pastoralists have the right to receive

both the nature of civil, political and socio-economic rights. Sub-article8

1.4. INDIRECT JUSTICIABILITY: EXPLORING THE

The Ethiopian constitution has entrenched both socio-economic rights and

The notion of interdependency, indivisibility and interrelatedness of human

Socio-economic rights did not get a balanced protection as compared to civil

The FDRE constitution refers to international treaty for interpreting bill of

The following discussion will look at cross-cutting rights entrenched in the

1.4.1. Right to Equality or Non-Discrimination

A foundational value of the constitutional order and a value

As indicated herein above, Chaskalson, advocated for the protection of

Ethiopia under Art 25 enunciated the right to equality in the FDRE

The equality guarantee in the FDRE constitution in both instances; including

Courts may also intervene and accord protection to socio-economic rights on

1.4.2. The Right to Life and Dignity

In that case, the Supreme Court of India stated that:

1.4.3. The Right to Fair Hearing

may extend to the sphere of socio-economic rights.‘50 Another aspect of the

In case of Ethiopia Article 20(5) of the FDRE constitution guaranteed the

is a victim of an economic and social rights violation should have access to

protection of the rights or to amend laws that violate these rights to be

1.5. RELEVANCE OF NPPO TO INDIRECT JUSTICIABILITY

In addition to incorporating socio-economic rights in the chapter of Bill of

obliged to be guided by these principles and objectives in the implementation

1. 5.1. Ensuring the Justiciability of Hidden Socio-Economic

In its decision the African Human Right Commission dealt

For instance, access to food is only mentioned as part of social objectives in

In so doing, our court can extend protection to the implied socio-economic

1. 6. CHALLENGES TO THE DIRECT ADJUDICATION OF

constitution. There are some challenges to direct adjudication of socio-

1. 6.1. Vagueness and Generality of the Constitution Regarding SER

It is plain that whenever there is a vague provision in relation to a certain

1.6.2. Absence of Subordinate Legislation

For instance, Ethiopia gave effect to the constitutionally entrenched right to

employment opportunities of persons with disabilities on equal manner and

1.6.3. Absence of Cases

fora.101 This evidences the underdeveloped jurisprudence of our local courts

1.6.4. Courts Lack Jurisdiction

1.6.5. Constitutional Reference by Judges

1.6.6. Lack of Awareness