Oddly for a country that has all manner of blueprints to economically empower citizens and eradicate poverty, Botswana has neglected to enact legislation that protects the economic rights of its citizens.
However, Botswana is not the only country with that problem, which is why Dr. Key Dingake suggests in his new book, “Constitutionalism and the Rule of Law in Botswana”, that some form of protection should be provided for global citizens through the United Nations system, if only to prevent a catastrophe like the one that led to the global economic meltdown that started in 2008.
Addressing Botswana’s specifically, Dingake laments the absence of socio-economic rights in the country’s constitution.
“This does not mean they are not rights. It only means that in the context of Botswana they may not be justiciable (capable of enforcement) because they are not constitutionally entrenched,” he contends in the book.
He hazards the guess that the possible explanation for this anomaly is that at the time the constitution was drafted, civil and political rights were separated from socio-economic rights on the reasoning that the latter were not legally enforceable. That notwithstanding, Dingake argues that there is absolutely no reason why the latter should be perceived to be less important than civil and political rights.
“It is therefore incumbent upon nations, more particularly the United Nations system, to bridge the gap between justiciability of civil rights and political rights and that of socio-economic rights.
The general argument advanced against the justiciability of socio-economic rights is that socio-economic rights impose positive duties for states, such as the duty to provide housing as contrasted with negative obligations, such as duty not to abridge freedom of movement, for instance.”
Personally, he rejects that view, arguing that every human right imposes a mixture of both negative and positive obligations with the caveat though that “certain socio-economic rights may be difficult to implement compared to civil and political rights.”
Countering the view that it would be extremely difficult to define socio-economic rights, Dingake says that in their nature, the content and boundaries of rights – be they civil or political – is similarly vague.
He gives as an example the right to life whose content is unclear as to whether it simply prohibits the state or individuals from killing or it extends to the right to decent living. He recommends that no effort must be spared to specify the content and limits of rights in order to define their meaning. To that end, he cites what the Inter-American Court on Human Rights did with a case in which it considered massacres by Colombian paramilitary groups. The Court found that the massacres forced eviction and displacement of civilian populations as well as loss of their homes and means of livelihood.
“It follows therefore that countries that are committed to human rights must entrench socio-economic rights in their constitutions with sufficient, relevant and contextual guidelines as to their implementation,” Dingake writes.
He further argues that the global recession that started in 2008 was the direct result of the absence of sufficient checks and balances in the financial markets, which situation was nefariously exploited by a small group of businesspeople.
“It is therefore imperative that any legislative framework that is crafted imposes necessary and reasonable limitations on economic freedom in order to ensure that other sections of society, especially the weak and less privileged, do not have their economic rights compromised on account of greed by bigger business players who abuse their dominant position in the market.”