[Editor’s note: This is part II of our special series titled “Constitutional Review in The Gambia: Contemporary Discussions.” The introduction to the special series is available here and Part I is available here.]

Judicial inquiry into Economic, Social and Cultural Rights (ESCRs) across the world has increasingly taken center stage in human rights discourse. In many cases relying on the progressive interpretation of ESCRs, courts have in numerous occasions found states actions inconsistent with domestic, regional and international standards relevant to the progressive realization of ESCRs. However, the major challenge courts face in addressing human deprivations have been largely due to the absence of normative domestic constitutional benchmarks to assess and measure states’ compliance with their international obligations. This has compelled courts to go beyond their traditional roles of merely interpreting positive law to venture into uncertain paths in their quest to protect and enhance human dignity. Thus, they became forums for constitutional dialogue and deliberative democracy. To that end, they have ordered: the halting of eviction orders on the basis of the right to adequate housing; states to reinstate social welfare benefits; states to reinstate essential medical programmes for the poor and required children from minority groups to be provided schools and deprived communities to have access to clean water.

On the other hand, courts in some jurisdictions declined any invitations for the enforcement of ESCRs on the basis that the content of such rights are notoriously uncertain and in avoiding ‘’purely political’’ decisions which are reserve for the executive, they have shied away from ESCRs. This school of thought is probably a steadfast servant of Lon Fuller’s polycentric effects theory. The pursuit of that theory is obviously not the essence of this contribution.

Therefore, this paper seeks to draw the attention of stakeholders in the constitutional review process to avail ESCRs their rightful constitutional positions in the new constitution as for the legitimacy of any government will be severely tested if it turns a ‘’blind eye’’ to the dire socio-economic conditions of its people. Equally, the enjoyment of ESCRs goes to the heart of human dignity which is the foundational basis for the enjoyment of all rights. The Gambia over the years relegated ECSRs as mere policy aspirations that were only pursued to meet political ends. The 1997 Constitution of the Gambia contains a bill of rights guaranteeing a limited number of ESCRs. These rights include the right to primary education, to property, and the right to join trade unions.  Thus, those rights that are expressly guaranteed in Chapter 4 of the Constitution can be enforced through a judicial process in terms of article 37. Fundamental rights such as the right to food, shelter, clean water, adequate standard of living only form part of the National Objectives, and as such makes it difficult for individuals and stakeholders to hold the government of the Gambia accountable for ESCRs violations through the judicial process.

What is required of the Gambia under international human rights law is to make efforts for the progressive realisation of ESCRs. This requires the Gambia to move as expeditiously as possible towards the full realization of ESCRs, bearing in mind that certain ESCRs cannot be achieved in the short term.  In General Comment No 3, the UN CESCR posits that these steps must be deliberate, concrete, and targeted as clearly as possible.  It further emphasized that there are certain ESCRs that impose immediate obligations that are capable of immediate application.  Thus, irrespective of resource availability ‘minimum core’ of ESCRs should be guaranteed. Therefore, guaranteeing ESCRs in the New Constitution will not only be symbolic in translating the political commitment/will to reality, but also ensure the prioritization of ESCRs in resource allocations, and will allow courts to ensure accountability for any violations. For the courts to go to the theater there should be adequate ESCRs sign posts in the New Constitution giving them directions.

To be continued…

Suggested Citation: Sainey Bah, Making Economic, Social and Cultural Rights a Reality in the ‘’New Gambia’’: Lessons from the 1997 Constitution, Law Hub Gambia Blog, 6 December 2018, at https://www.lawhubgambia.com/lawhug-net/newgambia-economic-social-cultural-rights.