The Human Rights Commission (HRC) notes with concern that there lacks clarity under the current Constitutional provisions regarding the status of economic, social and cultural rights in Zambia following the repeal of Part IX of the 1991 Constitution as amended by Act No. 2 of 2016.
 
Prior to the enactment of the Constitution of Zambia (Amendment) Act No. 2 of 2016, economic, social and cultural rights were clearly provided for under Part IX as part of Directive Principles of State Policy. The Directive Principles of State Policy served as a guide for the Executive, Legislature and the Judiciary in the development of national policies; implementation of national policies; making and enactment of laws; and application of the Constitution and any other law.
 
Although the Directive Principles of State Policy set out in Part IX of the 1991 Constitution (which was repealed) were not justiciable, the legal status accorded to the Directive Principles constituted a constitutional obligation on the part of the State to take appropriate measures towards the progressive realisation of economic, social and cultural rights, provided that resources were available to sustain their implementation.
 
The repeal and replacement of Part IX of the 1991 Constitution by Parts VII to XX of the amended Constitution of 2016 entails that the Constitution is now silent on economic, social and cultural rights, hence the lack of clarity regarding their legal status in Zambia.
 
It is the considered view of the Human Rights Commission that the failure of the National Referendum to pass the threshold to expand the Bill of Rights as proposed in 2016 meant that Zambia was left with Part III, which is the Bill of Rights that only protects civil and political rights. In other words, economic, social and cultural rights which Zambia has committed to uphold by acceding to the International Covenant on Economic, Social and Cultural Rights (ICESCR) are absent. Zambia acceded to the ICESCR on 10th April, 1984, and under Article 2 (1) of the said Covenant, each State Party undertakes to; “take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”
 
The Commission is aware of the Government’s intentions to re-visit the enactment of the expanded proposed Bill of Rights through a National Referendum which would be progressive if the Referendum succeeds. However, the failure of the National Referendum as was the case in 2016 implies that the citizens will have lost everything provided for under the Directive Principles of State Policy in as far as the realisation of their economic, social and cultural rights is concerned.
 
It is against this background that the Commission appeals to the Government to consider the holding of a National Referendum on the proposed Bill of Rights which provides for economic, social and cultural rights, further and special rights such as group rights, rights of vulnerable groups which includes women, children, and persons with disabilities among others. Having learnt from the outcome of the 2016 National Referendum which was unsuccessful, it is the Commission’s view that future National Referenda be held separately from the general election in order to avoid the risk of having the process politicised. 
 
In the interim, the Commission is advocating for the re-introduction of express provisions in the Constitution as earlier contained before the repeal and replacement of Part IX of the 1991 Constitution by Parts VII to XX of the amended Constitution of 2016. The Commission believes that the express mention of Directive Principles of State Policy in the Constitution was a strong demonstration of the State’s position and commitment regarding the promotion and protection of economic, social and cultural rights.
 
[The Human Rights Commission is a National Human Rights Institution established under Article 230 of the Zambian Constitution [Amendment] Act No. 2 of 2016 with an overall mandate of ensuring that the Bill of Rights is upheld and promoted]

Mr. Mudford Zachariah Mwandenga
CHAIRPERSON
HUMAN RIGHTS COMMISSION

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The mission of the Human Rights Commission is to promote and protect human rights for all people in Zambia through investigations of human rights violations, rehabilitation of victims of human rights abuses, education of communities and advocacy for policy and legal changes influenced by evidence based research

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