African Commission on
Human and Peoples’ Rights
GENERAL COMMENT 7
STATE OBLIGATIONS UNDER THE AFRICAN CHARTER ON
HUMAN AND PEOPLES’ RIGHTS IN THE CONTEXT OF
PRIVATE PROVISION OF SOCIAL SERVICES
General Comment 7: State obligations under
the African Charter on Human and Peoples’
Rights in the context of private provision of
social services
Adopted during the 72th Ordinary Session of the
African Commission on Human and Peoples’ Rights on
28 July 2022 in Banjul, The Gambia
Contents
Preface 5
A
Introduction 7
B
General human rights standards applicable to
social service provision 10
C
D
E
F
G
The non-commercial character of social services
10
Public service obligations and the collective interest in social services 12
The rights to equality and non-discrimination
13
The right to effective participation in public affairs
14
The right to access information
15
Progressive realisation and temporal accountability
16
Prohibition of retrogressive measures
17
State obligation for the provision of social services in all
circumstances 18
Justiciability and access to remedies
19
The State obligation to ensure the provision of
public social services
The obligation to provide quality public social services directly
The obligation to fund public services
The State obligation to regulate private
provision of social services
20
20
21
24
The obligation to establish regulatory standards
24
Monitoring and evaluation 27
Enforcement and accountability 27
Public participation in the regulatory process
28
Safeguards against regulatory capture
28
Conditions for the delegation of public
resources to support private actors involved
in social service provision
29
Substantive requirements for the delegation of public resources
30
Procedural requirements for the delegation of public resources
31
Operational requirements for the delegation of public resources
32
Private social service providers ineligible for delegation for public
funding of private actors 33
Human rights consequences for actors other
than States 34
Human rights consequences for private actors under the
African Charter 34
Human rights consequences for intergovernmental actors
35
Reporting obligations 36
Preface
The African Commission on Human and Peoples’ Rights is pleased
to present General Comment 7 on State obligations under the African
Charter on Human and Peoples’ Rights with regard to social services
in the context of private provision. This General Comment signals the
Commission’s continued interest in this important topic, as expressed
in Resolution 420, on the State Obligation to Regulate Private Actors
Involved in the Provision of Health and Education Services, and
Resolution 434, on the Need to Develop Norms on States’ Obligations
to Regulate Private Actors Involved in the Provision of Social Services.
In Resolution 420, the Commission noted with concern that
instead of improving access to economic, social and cultural rights,
many private actors were increasingly contributing to the ‘low level of
enjoyment’ of these rights on the continent. Later, the Commission
adopted Resolution 434, mandating the Working Group on Economic
Social and Cultural Rights (Working Group) to develop norms to
address this problem. Resolution 434, adopted just seven days before
the World Health Organisation declared SARS-CoV-2 (COVID-19)
an official pandemic, could not have arrived at a more appropriate
time. In the months that followed, Africa saw the full effects of the
pandemic, which were exacerbated by decades of underinvestment in
public social services on the continent.
In light of these developments, this General Comment reflects
many months of research and debate over the Commission’s
jurisprudence, its existing soft-law standards, and recent state practice
on the continent. In carrying out its task, the Working Group was
supported by five partners: the Centre for Human Rights, University
of Pretoria; the Dullah Omar Institute, University of the Western
Cape; the Global Initiative for Economic, Social and Cultural Rights
(GI-ESCR); the Initiative for Social and Economic Rights (ISER),
the Open Society Foundation, and the Right to Education Initiative
(RTEI). The Commission could not be more grateful for their
invaluable contributions.
5
The Commission adopted this General Comment on 28 July 2022,
during its 72nd Ordinary Session, held virtually.
Commissioner Mudford Mwandenga
Chairperson of the Working Group on Economic,
Social and Cultural Rights
6
A
Introduction
(1)
In African Union (AU) Agenda 2063, the continent’s ‘great
task’ is to establish a more egalitarian Africa founded on ‘good
governance, democracy, respect for human rights, justice and the
rule of law’.1 A critical step towards achieving this goal is the
universal provision of quality social services. This broad range
of services – which can include anything from healthcare to
piped water and quality education – ensures that the necessities
of life are provided to all individuals, no matter the conditions of
their birth. The provision of these services, therefore, is not only
integral to the welfare of each African but is also an important
indicator of a government’s commitment to the objectives
outlined in the African Charter on Human and Peoples’ Rights
(African Charter).
(2)
In the African regional human rights system, the State obligation
to ensure the provision of social services has a long history. Its
roots trace back to Article 13(3) of the African Charter, which
guarantees ‘access to public […] services in strict equality’
before the law. In 2007, African States developed this obligation
further in the African Charter on Democracy, Elections and
Governance (African Democracy Charter) by committing
themselves, in Article 41, to ‘provide and enable access to basic
social services’ to everyone under their jurisdiction. Two years
later, in the AU Convention for the Protection and Assistance of
Internally Displaced Persons, AU States reaffirmed their social
service obligations, committing themselves to provide ‘internally
displaced persons [with] food, water, shelter, medical care and
other health services, sanitation, education, and any other social
services’.2 These obligations were expanded in 2022, with the
adoption of the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Citizens to Social Protection and
Social Security (Social Protection and Social Security Protocol).3
(3)
Yet in recent decades the implementation of the State’s
obligation to provide social services has faced many challenges.
One of the most significant was the set of policy reforms
introduced with the ‘Washington Consensus’. For most
of the 1980s and 1990s, governments, the private sector,
7
and international financial institutions endorsed a range of
economic policies that encouraged States to gradually withdraw
from social service provision.4 During this transition, private
actors became increasingly involved in the provision of services
traditionally delivered by governments.5 Steadily, the pursuit
of macro-economic policies of liberalisation, privatisation and
deregulation saw African policymakers neglect or fail to comply
with their obligation to build and maintain a strong, public
social service infrastructure. This trend has continued well into
the 21st century with more than 50 percent of governments in
sub-Saharan Africa adopting new laws to facilitate public-private
partnerships (PPP) between 2017 and 2020.6
(4)
These issues came to the fore in 2020, when the outbreak of
COVID-19 further exposed stark contrasts between public
and private social service provision. Across the continent,
disadvantaged and marginalised groups suffered the
disproportionate effects of price hikes on essential items such
as face masks and medicines.7 In education, COVID-19 exposed
a lack of resilience in the private sector, forcing governments to
divert public funds to bail out failing private schools.8 And in
informal settlements, the absence of an accessible water supply
left residents unable to perform frequent and proper handwashing.
Recent years have also witnessed reports of unethical clinical
trials, where experimental drugs are administered to patients
without their consent or with insufficient disclosure of the risks.9
(5)
Most significantly, the pandemic highlighted that instead of
broadening access to social services, many commercial actors
have pursued profit-seeking strategies that make these services
more inaccessible to large segments of the population.10 In the
most extreme cases, private actors have delivered overpriced
services of such poor quality that State agencies had to be
reintroduced to the supply chain to undo the damage.
(6)
Over the years, in response to these challenges, the African
Commission on Human and Peoples’ Rights (African
Commission) has adopted a range of instruments to prevent
and address human rights abuses by private actors. These
8
include the 2004 Pretoria Declaration on Economic, Social and
Cultural Rights,11 the 2010 Principles and Guidelines on the
Implementation of Economic, Social and Cultural Rights (ESCR
Guidelines),12 and the 2011 State Reporting Guidelines for
Economic, Social and Cultural Rights in the African Charter.13
More recently, the Commission adopted Resolution 420, on
the State Obligation to Regulate Private Actors Involved in the
Provision of Health and Education Services.14 This guidance
was developed further in the Commission’s 2019 Guidelines on
the Right to Water in Africa (Water Guidelines).15 Resolution
420’s content is reinforced by the Social Protection and Social
Security Protocol.
(7)
At the international level, crucial normative developments have
also occurred, such as the publication of the United Nations
(UN) Guiding Principles on Business and Human Rights, and
the adoption by the UN Committee on Economic, Social and
Cultural Rights of the General Comment 24 on State obligations
under the International Covenant on Economic, Social and
Cultural Rights in the context of business activities. Outside
the UN, expert-led initiatives, such as the Abidjan Principles
on the Human Rights Obligations of States to Provide Public
Education and to Regulate Private Involvement in Education
(Abidjan Principles) have also provided critical guidance in this
area, which has been explicitly recognised by the Commission.16
(8)
These instruments – developed with the input of States, affected
communities and many private actors themselves – provide a
solid conceptual foundation for this General Comment, which,
building on this strong base, continues the Commission’s
evolving interpretation of the Charter,17 and takes into account
recent experiences on the continent. This General Comment
outlines States’ obligations to respect, protect, promote and fulfil
all human rights, within their territories and extraterritorially. It
aims to guide the interpretation and implementation of the State
obligations to:
(a)
ensure the provision of quality and accessible social
services to all;
9
(b)
(c)
regulate all private actors that participate in social service
provision; and
provide the Commission with comprehensive information
in their reports under Article 62 of the Charter.
(9)
The General Comment also addresses the duty incumbent on all
private actors to respect human rights in their activities.
B
General human rights standards applicable to social
service provision
(10) Under the African Charter, social services such as education,18
food,19 healthcare,20 housing,21 social security22 water,23 are
not commodities for those who can afford them, but human
rights guaranteed to all. When States provide the services that
implement these rights, they must comply with the general
standards outlined below, consistent with their obligation to
respect, protect, promote, and fulfil all human rights.
The non-commercial character of social services
(11) Increasingly commercial interests in Africa are transforming
social services into private commodities. This trend towards
commercialisation undermines the object and purpose of the
African Charter, which views social services not as commercial
products, but as essential preconditions for the enjoyment of
human rights. The Commission emphasised this point in the
Guidelines on the Right to Water in Africa, noting, for example,
that delegation of water services to a private actor should not
‘contribute to the marketisation or commercialisation’ of water
and sanitation.24
(12) In the Commission’s engagement with States under Article
62 of the Charter, it has noted an emerging pattern of
government’s attempting to ‘release’ themselves from their
obligations to provide quality social services.25 The consequent
commercialisation of social services risks eroding their intrinsic
public function and impairing the enjoyment of human rights.26
This view reflects an emerging consensus under international
human rights law, expressed by the UN Special Rapporteurs on
10
the right to education,27 extreme poverty and human rights,28
safe drinking water and sanitation,29 and the right to adequate
housing,30 who have all affirmed that the commercialisation of
social services is detrimental to human rights.
(13) However, private provision need not necessarily result in the
commercialisation of social services. Under effective and
comprehensive regulation, democratically controlled, noncommercial private actors have the potential to contribute to
ensuring universal access to social services. For example, in
many rural areas, community-based water management systems
have been effective short-term solutions for the realisation
of the right to water, especially in circumstances where piped
infrastructure is not immediately feasible.31 Similarly, in the
context of education, certain linguistic and religious minorities
have established non-commercial independent schools, which,
with adequate regulation and support, can transfer knowledge
about their community’s culture, history, traditions and
languages when public schools lack the resources or expertise.32
These actors, that may, under certain conditions be considered
to be ‘public’, may contribute to broader State efforts to realise
the rights in the Charter, and ensure the universal provision of
social services to all. In these cases, States could play the role
of an enabler, helping maximise community-led contributions to
the goals of the Charter.33 Under certain circumstances, States
should facilitate and regulate democratic, non-commercial
provision by communities, as part of their long-term strategy to
progressively realise economic, social and cultural rights.34
(14) The term ‘public’ as referred to in this General Comment
may thus require a different understanding from the one that
is predominant in many parts of the continent and the world.
Public social services have in practice not always been developed
and governed according to their public nature. They have, at
many times, served the interests of the wealthy and powerful,
contributing to the oppression or exclusion of certain groups.
In this General Comment, the term ‘public’ is less concerned
with the public nature of the entity delivering the services, that
generally is the State, than with the practical modalities of how the
11
service is delivered, and to what standards the service provider
is held to account. In this understanding, public provision of
social services is distinctive in that it allows for the equal and
democratic involvement of all members of the community or
society in their design, organisation, governance, financing,
delivery and monitoring of social services, in the exclusive
pursuit of the public interest. As a result, publicly delivered
social services must be able to take a long-term perspective and
must be democratically accountable to the public, as opposed to
commercial actors and their shareholders and investors which
typically respond to a range of private interests.
Public service obligations and the collective interest in social services
(15) The provision of social services is an inherently public activity,
critical for the enjoyment of human rights. Therefore, whenever a
private actor participates in social service provision, they perform
a core public function that demands a high level of protection
of the collective interest.35 This overriding public interest
requires States to impose a range of ‘public service obligations’
on all actors involved in social service delivery. Public service
obligations refer to a set of domestic norms and regulations
that ensure that the State’s international obligation to respect,
protect, promote and fulfil human rights is upheld, even when
private actors may manage, control, or otherwise participate
in the day-to-day aspects of social service provision.36 Public
services obligations require, among others, that when private
actors decide to provide social services, they agree to forgo their
private interests for the specific purposes of such provision, and
take on the public interest as their primary objective. States must
impose public service obligations to ensure that social services,
at minimum, are:
(a)
(b)
(c)
(d)
(e)
available to all individuals on an equal basis and without
discrimination;37
accessible, even in times of emergency;38
acceptable to the users;39
of the highest attainable quality;40
effectively regulated;41 and
12
(f)
and subject to democratic public accountability.
(16) Therefore, public service obligations require in particular that
social services are made available to all individuals, regardless of
their geographical location, at a specified quality, and, depending
on the circumstances, at no cost to the user, or at a subsidised,
reduced cost below a market rate.
The rights to equality and non-discrimination
(17) Social services have a strong redistributive potential, which
can promote economic mobility, reduce inequalities, and assist
States to realise the rights to equality and non-discrimination.
However, the emergence of commercialised social services on
the continent has distorted these impacts, leading to increased
inequalities and discrimination, especially on the grounds of
income. The Commission has observed this for instance in the
education sector, noting how commercial private schools have
heightened the risk of ‘discrimination against children from lowincome households’.42 Private actors have also been linked to a
rise in overall prices in the healthcare sector, placing life-saving
procedures out of reach for poor communities.43
(18) Article 2 of the Charter, which expressly prohibits discrimination
based on ‘fortune’, makes it clear that economic status must
never obstruct an individual’s enjoyment of economic, social
and cultural rights. Therefore, in a range of contexts, the rights to
equality and non-discrimination require States to provide certain
services on a low or no-fee basis, to ensure provision to everyone,
regardless of their financial position. By making interventions
that eliminate or significantly reduce costs for the user, States
can address entrenched structural barriers that generate and
perpetuate inequality over generations. To align the provision of
social services with the rights to equality and non-discrimination,
States must:
(a)
(b)
ensure equal and universal access to quality social services;
protect individuals from discrimination by all social service
providers; and
13
(c)
identify and address discriminatory practices, including
multiple, intersectional, associative, and perceptive
discrimination, while identifying and addressing sources
of inequality in the enjoyment of social services.
The right to effective participation in public affairs
(19) In the African Democracy Charter, States undertake to
implement ‘transparent and accountable’44 systems of
government that foster ‘popular participation in partnership
with civil society’.45 This obligation corresponds to Article 13(1)
of the Charter, which guarantees the right of all individuals to
‘participate freely in [their] government’. According to General
Comment 25 of the Human Rights Committee, the right to
participate in political and public affairs is a right to exercise an
element of ‘political power’.46 In other words, the public must
have meaningful influence over decisions that affect them. This
influence can only be realised in conjunction with a range of
other rights, including freedom of expression and information,
assembly, association, and equality.
(20) By facilitating effective public participation, policymakers,
regulators, and legislators can deepen their understanding of
contentious issues, enabling them to better identify gaps in social
service provision and develop lasting solutions. In this way,
governments can ensure that their decision-making is informed
and sustainable, while also guaranteeing that public institutions
are more effective, accountable, and transparent. This enhances
the legitimacy of government action and fosters a sense of
communal ownership in State policy. Most importantly, public
participation also constrains the ability of elites to impose their
will on those who lack the resources to resist exploitation, which
is a frequent concern with privatised social services.
(21) As affirmed in the Guidelines on the Right to Water in
Africa, States must establish mechanisms that proactively and
deliberately enable the transparent, maximum, and effective
participation of individuals and communities at the planning,
decision-making, implementation, monitoring and evaluation
stages of social service provision, in a manner that is democratic
14
and inclusive.47 This obligation applies in all cases, whether the
service provider is public or private.
(22) In contrast to ‘participatory’ processes that are pro forma or
tokenistic, rights-based participation aims to transform social
services by designing them around the concerns and priorities
of the public at large, and the specific community being served.
In many contexts, especially where indigenous peoples are
concerned, the right to participate in political and public affairs
extends beyond the right to be heard or meaningfully consulted,
and requires affected groups to make decisions themselves, in
accordance with their customs and traditions.48 This includes the
obligation to secure free, prior and informed consent (FPIC).49
When States fail to obtain FPIC, they expose communities and
service providers to violence, litigation, operational delays, and
even loss of life.50
(23) As highlighted in the Commission’s Guidelines and Principles
on Economic, Social and Cultural Rights in the African Charter
on Human and Peoples’ Rights’ (ESCR Guidelines), civil society
plays a ‘key role’ in the implementation of economic, social and
cultural rights.51 States should actively seek out civil society input
on social service provision, and safeguard the independence
of civil society organisations. States must not subvert public
participation by imposing undue restrictions on the right of
civil society to access financial or other support from the local
private sources, the State itself, foreign States, international
organisations, transnational donors and other external entities.52
The right to access information
(24) The right to access to information is an indispensable component
of the State’s obligation to ensure the provision of social services.53
When States make public information easily accessible, they
demonstrate a strong commitment to fighting corruption,54
eliminating inefficiencies, and maintaining a politically engaged
population.55 To ensure this, many States, in pursuit of meeting
their obligation under Article 9(1) of the African Charter, have
imposed robust access to information laws for the public sector,
which enable civil society, law enforcement, and the victims of
15
human rights abuses to access vital information in the public
interest. However, in the private sector, crucial information is
often concealed by legal, financial and procedural obstacles that
are incompatible with Article 9(1). Many of these laws make it
impractical, or even impossible for rights-holders to access the
information they need - even when this information serves the
public interest. In the Commission’s view, these burdensome
disclosure requirements are incompatible with Article 9(1).
(25) States must bring their access to information laws into
conformity with the African Commission’s Declaration of
Principles on Freedom of Expression and Access to Information
(FOE Declaration). The FOE Declaration, which reflect many
of the norms set out in the Commission’s Model Law on Access
to Information,56 requires States to make public information
available ‘expeditiously and inexpensively’ under the principle of
maximum disclosure.57 Further, the FOE Declaration reaffirms
the right of all individuals to access the information of private
bodies, including commercial actors, where this information may
‘assist in the exercise or protection of any right’. 58 Therefore,
when any private or public actor engages in activities relevant to
the provision of social services, they must ‘proactively publish
information of public interest, including information about
their functions, powers, structure, officials, decisions, budgets,
expenditure and other information relating to their activities
expeditiously and inexpensively.’59 This requirement also extends
to private bodies that receive public resources in accordance with
Section 5 below.
Progressive realisation and temporal accountability
(26) In recent years, the concept of ‘progressive realisation’ has
been misused by some States to evade their obligations under
the Charter to justify successive failures to ensure the universal
provision of social services. As a result, many communities have
endured decades of deprivation, as they wait for water, healthcare
and other social services that never arrive.60 In the Commission’s
view, much of this slow progress is the result of a lack of will,
rather than a lack of capacity. These unreasonable delays – and
the political inertia that prolongs them – is incompatible with
16
the State obligation to progressively realise economic, social,
and cultural rights.
(27) Progressive realisation does not allow States to implement their
obligations with piecemeal improvements.61 Instead, it prescribes
a comprehensive obligation to take a series of immediate steps
that achieve visible results, which can be assessed against predetermined benchmarks, with objectives that evolve over time.
To achieve this, States must set short, medium and long-term
goals to ensure the availability, accessibility, acceptability and
quality of social services for all, while addressing inequality in
the enjoyment of the services between different categories of
individuals and communities.62 States must ensure that a larger
number and wider range of persons must have access to all
economic, social and cultural rights over time to comply with
this obligation. Accordingly, States must outline a clear national
strategy for the provision of each social service, detailing concrete
benchmarks and specific activities in order to achieve provision
of social services within a definite timeframe. These strategies
must impose safeguards for temporal accountability. These
safeguards must specify clear timeframes for project completion
and accountability mechanisms to address unreasonable delays.
Prohibition of retrogressive measures
(28) When States take retrogressive measures, they must overcome
a heavy burden of proof to demonstrate that their actions are
justified under international human rights law. To do this,
States must prove that their actions comply with the ‘totality
of the rights’ provided for in the Charter and reflect the States
immediate obligation to use the maximum available resources
to progressively realise economic social and cultural rights.63
A measure is retrogressive if it diminishes the enjoyment
of a right’s full normative content, including its availability,
accessibility, acceptability, adaptability, or quality. For example,
water disconnection,64 cuts to social security payments,65 and
insufficient maintenance of infrastructure necessary for social
service provision,66 are all retrogressive measures incompatible
with the Charter. The delegation of resources to a private
17
actor will also be a retrogressive measure if it fails to meet the
conditions outlined in Section 5 below.
(29) If retrogressive measures are taken, the State must demonstrate
that the measures:67
(a)
(b)
(c)
(d)
(e)
(f)
(g)
are temporary in nature and effect, and remain in place
only as long as they are necessary, while being extendable
upon review;68
pursue a legitimate aim, in accordance with the aims set
out in Article 27(2) of the Charter;
are necessary, in the sense that a failure to act or the
adoption of any other policy would be more detrimental to
the legitimate aim pursued;
are proportionate, in that they must be justifiable after
careful consideration of all less restrictive alternatives;
are non-discriminatory, in the sense that they do not
disproportionately affect the rights of vulnerable and
marginalised groups, and can mitigate against the
inequalities that can emerge in times of crisis;
involve the full and effective participation of affected
groups; and
protect the core content of economic, social and cultural
rights at all times.69
State obligation for the provision of social services in all circumstances
(30) The State cannot exempt itself from its human rights obligations
by invoking the involvement of private actors in social service
provision. States must impose and enforce laws, regulations
and policies to ensure that all private actors operating under
their jurisdiction respect human rights in all their operations,
domestic and international. When a private actor participates in
social service provision and abuses human rights in the process,
the State can still be held directly responsible under international
law. For this reason, the Commission has affirmed that if a State
neglects to ensure the rights in the African Charter, this can itself
‘constitute a violation, even if the State or its agents are not the
immediate cause of the violation’.70
18
Justiciability and access to remedies
(31) Under international law, governments are obliged to carry
out exhaustive and impartial investigations into allegations
of violations of human rights, to identify, bring to justice and
punish their perpetrators, be they private or public actors, and to
provide remedy for the victims or their families. Remedies must
be delivered by independent and effective redress mechanisms,
including judicial mechanisms, empowered to determine
whether a violation has occurred, order its cessation and deliver
adequate, effective and comprehensive reparation to redress
the harm done.71 This requires all States to ensure all the rights
protected by the Charter are justiciable in their national legal
systems, and ensure that any non-judicial remedies are reinforced
by judicial review.72
(32) In a globalised world, a single private actor can abuse rights in
multiple jurisdictions, across their entire supply chain. In these
cases, victims face significant challenges when seeking remedy.73
These range from a lack of political willingness to redress harms
suffered, to procedural and legal hurdles which many victims
lack the money or knowledge to overcome. In many cases, the
legal system where the violation occurs is often an inadequate
source of remedy due to weak enforcement, a lack of judicial
independence, disregard for the rule of law, corruption among
state officials or intimidation of human rights defenders. In these
situations, victims are forced to seek remedy at ‘home courts’,
where the private actor is headquartered. However, establishing
jurisdiction in the company’s home State has its own challenges,
as victims face recurrent hurdles in jurisdiction. In those cases
where jurisdiction is not an issue, victims must still overcome
a host of extra-legal obstacles, such as amassing the resources,
documentary evidence, and legal representation required to
successfully launch their claim against a private actor.
(33) To overcome these challenges, States must ensure access to
prompt, effective and procedurally fair remedies, that redress all
situations where the State fails to:74
19
(a)
(b)
fulfil its obligations to provide access to quality, public
social services; or
prevent private actors from interfering with the enjoyment
of social services.
(34) Effective remedies must be made available in transnational
situations, where litigation is often time-consuming and
prohibitively expensive.75 In these cases, a lack of mutual legal
assistance or an unwillingness to enforce a foreign court’s ruling
can violate a victim’s right to remedy. States should cooperate
when providing remedies to victims of transnational human
rights violations committed by private actors. In particular,
States should remove the substantive, procedural and practical
barriers around access to remedy in transnational cases.76
C
The State obligation to ensure the provision of
public social services
(35) Human dignity, which is a pillar upon which the African Charter
is founded, is denied when individuals have no access to social
services. Under international human rights law, the State must
ensure an effective system for the provision of quality social
services in order to respect, protect, promote, and fulfil their
obligations with regards to human rights. Although States have
reasonable discretion when designing their systems for social
service provision, there should always be a quality public option.
This system should be adequately funded, democratically
controlled, and non-commercial in nature.
The obligation to provide quality public social services directly
(36) The State obligation to provide public social services, is rooted in
the Charter itself,77 in general international human rights law,78
and reflected widely in State practice.79 The Commission,80 the
CESCR Committee,81 the CRC Committee and a host of United
Nations special procedures, have explicitly called for the State
provision of public services,82 such as ‘public healthcare’,83 ‘public
housing’,84 ‘electricity’,85 and education.86 A critical component
of this obligation is the State’s duty to provide certain services
20
directly. This, for example, is the situation in education, where
States have an obligation to provide quality public education.87
The obligation to fund public services
(37) The obligation to provide public social services cannot be realised
without sufficient resources being mobilised, allocated and spent
in an accountable, effective, efficient, equitable, participatory,
transparent and sustainable manner.88 Prioritising social services
in budgetary policy contributes not only to realising the rights
in the Charter, but also has a strong correlation with economic
growth and sustainable development. Hence, all structures in
government with a role in devising public budgets should exercise
their functions in a way that realises the rights guaranteed in the
Charter.
(38) Under Article 1 of the Charter, States must take ‘legislative or
other measures’ to give effect to economic, social and cultural
rights,89 to their maximum available resources. This requires
States to use all resources, existing and potential, including
natural, human, technological, institutional and informational
resources.90 To execute this obligation, States must:91
(a)
(b)
(c)
(d)
impose laws and policies to support resource mobilization,
budget allocation and spending in order to fund the
provision of public social services;
collect, generate, and disseminate the necessary data and
information to support the design and implementation of
appropriate legislation, policies, programmes and budgets
to advance the provision of public social services;
ensure that budgets are systematically planned, enacted,
implemented and accounted for at the national and
subnational levels of the State; and
mobilise, allocate and utilise public resources to fully
implement approved legislation, policies, programmes and
budgets relevant to the provision of public social services,
including resources mobilised through:
(i) primarily domestic resources, such as fair and
progressive taxation and other domestic income
generating mechanisms; expansion of the revenue
21
(ii)
base; reallocation of public expenditure; elimination
of illicit financial flows, corruption, tax evasion, and
tax avoidance; the use of fiscal and foreign exchange
reserves; the management of debt by borrowing or
restructuring existing debt; the development and
adoption of an accommodating macroeconomic
framework; or
international assistance and co-operation.
(39) When budgeting for public social services, States should allocate
resources in a manner that reduces inequalities in the enjoyment
of social services between different groups. This requires States to
make evidence-based, per capita allocations for different groups,
disaggregated by age, social and economic status, geography,
ethnicity, income, gender, disability, and other grounds.92
Where social service obligations are shared between a national
government and a subnational government, States should ensure
that sub-national governments have sufficient funding to meet
all the economic, social, and cultural obligations delegated to
it. These funds should be dispersed fully, in compliance with the
applicable legislation, as soon as possible, to avoid any delay in
social service delivery.93
(40) Further, States should ensure that spending does not fall
below the level required by domestic or international funding
commitments, such as the percentage of gross domestic product
earmarked in development goals.94 States must also allocate
sufficient funds to deliver social services during emergencies,
including the outbreak of war, natural disasters or public health
crises.95 States must take proactive steps to ensure the provision
of social services even during social, political or economic
crisis.96
(41) Public resources dedicated to social service provision should
be managed efficiently, to realise the States obligation to
respect, protect. promote, and fulfil human rights. Approved
expenditures should be executed in line with the enacted budget.
Goods and services to advance human rights should be procured
and delivered transparently and on time, and be of appropriate
22
quality. States parties should make efforts to overcome
institutional barriers that impede efficient spending. Monitoring,
evaluation and auditing of public funds should provide checks
and balances that promote sound financial management.
(i)
What constitutes ‘efficient spending’ must be evaluated
on the basis of human rights, and not exclusively in
terms of financial cost.97 In most hospitals, financial
cost per treatment is often treated as a major indicator
of efficiency. As a result, administrators tend to make
short-term efficiency gains by reducing the amount
of time a patient spends in hospitals. However,
many patients require further care at home, which is
often provided, unpaid, by their families. Therefore,
efficiency may appear to increase as the cost of treating
each patient decreases, but these apparent cost savings
are borne by the relatives, who must reduce their time
for other activities (such as sleep, school, and paid
work) to care for their family members. Since most
caretakers are women and girls, some measures that
appear as ‘efficient’ can have negative ripple effects
on the rights to education, to play, to seek work and
human development.98
(42) Further, all expenditure should be justified by appropriate
procurement processes. States have an obligation to uncover
and remedy the root causes of ineffective and inefficient public
spending, for example, poor quality of goods or services,
inadequate financial management or procurement systems,
leakages, untimely transfers, unclear roles and responsibilities,
poor absorptive capacity, weak budget information systems and
corruption. When States parties waste or mismanage resources
aimed at advancing or implementing human rights, they have an
obligation to explain why this has occurred and show how the
causes have been addressed, their effects remedied, and which
safeguards have been implemented to ensure non-repetition.
States must eliminate wasteful expenditure. Expenditure is
wasteful when:99
23
(a)
(b)
(c)
(d)
D
it is not used for its intended purpose;
the government pays more than required for goods and
services, or where it procures goods and services of
inadequate quality;
its underlying allocations are not justified by evidence; or
it duplicates other expenditure.
The State obligation to regulate private provision of
social services
(43) Regulation is a central pillar of the State’s obligation to protect
human rights.100 States must regulate multinational corporations,
local companies, and other private actors, not simply to ensure
that they do not explicitly abuse rights, but also to ensure that
these private actors support, rather than undermine, broader
efforts to realise economic social and cultural rights.101 As
affirmed in the Commission’s jurisprudence, States must create
and maintain an ‘effective interplay of laws and regulations’ to
ensure groups and individuals can access quality social services
without undue interference from private actors. 102
(44) This regulatory interplay requires States to adopt administrative,
legislative, investigative, adjudicatory and other measures to
prevent, and when applicable, mitigate, investigate, punish
and remedy any human rights abuses under their jurisdiction,
regardless of the public or private nature of the entity providing
the social service.103 This obligation extends to all ancillary
goods, facilities and activities related to the provision of social
services.104 Throughout the regulatory process, the State must
(a) set human rights standards for the social service in question,
(b) monitor and evaluate compliance by service providers, (c)
prohibit, punish and redress human rights violations, (d) facilitate
access to information and effective public participation, and (e)
address regulatory capture in accordance with the obligations set
out below.
The obligation to establish regulatory standards
(45) Clear regulatory standards are the bedrock of an effective
regulatory regime.105 The term ‘regulatory standards’ refers to the
24
wide range of legally enforceable rules which impose mandatory
requirements on social service providers, as well as the various
non-binding advisory rules, for which there is a reasonable
expectation of widespread compliance. States must organise
their regulatory systems around a set of rules and benchmarks
that enforce the human rights in the Charter.106
(46) The nature of the specific regulatory standard will depend on the
social service in question, and the context it is provided in. For
example, in the context of drinking water, regulatory standards
should ensure access to a minimum essential amount of water
that is sufficient, reliable, and safe for personal and domestic
uses to prevent disease.107 In the healthcare sector, regulations
must ensure that all medicines meet scientifically appropriate
standards for quality, safety, and efficacy, and are not subject to
exploitative or unreasonable high prices.108 With regard to social
security, States must impose standards to prevent private actors
from imposing eligibility restrictions on prohibited grounds such
as HIV status.109 And in connection with housing, States should
impose regulatory standards that preserve security of tenure and
affordability of housing for tenants, including through rent caps,
controls or rent freezes where needed.110
(47) States must therefore create a predictable legal environment,
premised on standards that are accessible, clear, and consistent.111
These standards must be designed in a participatory process
involving all stakeholders, including the communities being
served, civil society organisations, and private service providers
themselves. At a minimum, regulatory standards must address
the following:112
(a)
the administration of the private social service provider,
including:
(i)
the process for registration and licensing, and the
conditions for their withdrawal;
(ii) the full and effective participation of communities,
trade unions, and other civil society organisations in
the private social service provision;
25
(b)
(c)
(d)
(e)
(f)
(g)
(iii) the relevant labour standards, to ensure at the
minimum the respect of applicable standards of
the International Labour Organisation and other
domestic and international standards;
(iv) where applicable, the level of fees and other direct and
indirect charges, paying particular attention to the
risk of over-indebtedness and the State’s obligation to
ensure that social services are accessible;113
(v) transparency of and access to all information relevant
to human rights and the public interest, including
their domestic and, where applicable, international
administrative and financial structure; all potential
fees and other charges for the communities or
individuals they service, data about the quality of
their operations, and information about the profit
earned and any dividends paid out;
where applicable, the level of fees and other direct and
indirect charges, paying particular attention to the State’s
obligation to ensure that social services are accessible;
the protection of rights of access in the context of failure or
delay in the payment of fees where they exist;
the minimum requirements regarding accessibility,
including access for persons with disabilities, in line with
the obligation to guarantee reasonable accommodation,
and ensuring that service providers do not directly or
indirectly charge additional fees for these accommodations;
the protection of the environment and communities
from exploitative or harmful practices by private service
providers;
the protection of communities against excessive,
exploitative, or misleading marketing or advertising by the
service provider that supplies them;
privacy and data protection, ensuring respect for the rule
of law and ethical practices with regards to personal data.
States must also ensure that no personal information,
including biometric data, be collected or retained without
consent, or be shared with third parties without express
consent, including for commercial, immigration, political
or security purposes.
26
Monitoring and evaluation
Many States have strong regulations on paper but have no efficient
mechanisms for monitoring compliance with these standards in
practice.114 Monitoring includes processes such as inspection, data
collection, and routine evaluation. It is a vital tool for ensuring that
service providers comply with the applicable regulatory standards, and
for assessing the State’s own compliance with its obligation to realise
economic, social and cultural rights. Monitoring and evaluation
enable States to make a context-specific situational analysis to inform
its public policy, measure its progress, and evaluate performance and
overall outcomes. Further, it must enable the State to anticipate the
risk of retrogression and other human rights abuses, and institute
measures to avoid them.
(48) Effective monitoring requires States to collect, analyse and
disseminate accurate information on the activities of all social
service providers, as well as their long and short-term systemic
impacts on economic, social and cultural rights. This requires
domestic laws which impose a duty of proactive disclosure on
service providers of complete and reliable information which
details, at minimum: the quality of the services they offer,
complaints received from users and any challenges faced in
extending services to underserved areas. Such laws should
reflect the standards laid down by the Commission in the FOE
Declaration.115
Enforcement and accountability
(49) Many private social service providers operate in impoverished or
marginalised communities who lack access to justice. States must
take all necessary steps to prevent a denial of justice and ensure
the effective implementation of the right to effective remedy
and or reparation. States have a positive obligation to remove
substantive, procedural and practical barriers to remedies,
including by establishing parent company or group liability
regimes, enabling human rights-related class actions and public
27
interest litigation. If victims lack the resources to pursue a legal
remedy, States should ensure that legal aid is made available.116
(50) Where private actors do not comply with applicable standards
and regulations, States must encourage compliance in the
shortest possible time through measures such as providing
appropriate expertise and offering support tools and management
assistance, or, if non-compliance persists, by enforcing penalties.
They should effectively seek remedies and compensation where
applicable. Where, after having taken such measures, private
social service providers are unable or unwilling to comply with
standards and regulations, States should, following due process,
cease their operations and where necessary find an alternative
provision, after having:
(a)
(b)
given them adequate notice and a reasonable opportunity
to comply with these standards; and
ensured that there is continued enjoyment of human rights
for all affected rights-holders.
Public participation in the regulatory process
(51) Regulatory decision-making processes must ensure genuine and
meaningful public participation.117 Every individual and group
has the right to participate actively, freely and meaningfully
in any regulatory process that may affect their enjoyment of
economic, social and cultural rights. States must take adequate
steps to ensure that all people, including marginalised groups, are
given a real opportunity to take part in and influence the making
of regulations, as well as their monitoring and enforcement.
Therefore, States must establish mechanisms that proactively
and deliberately enable the transparent, maximum, and effective
participation of individuals and communities at all stages of
planning, decision-making, implementation, monitoring and
evaluation of social service provision in a democratic and
inclusive manner.
Safeguards against regulatory capture
(52) Some actors have a vested interest in a weak and ineffective
regulatory environment. Often, these actors use their expertise
28
in the industry, or close proximity to the regulator, to pressure
authorities into adopting weak human rights protections.118
This process, known as regulatory capture, occurs when
an interest group uses its influence or resources to secure a
favourable regulatory decision, or even, regulatory indecision.
This takes many forms, from the explicitly illegal (bribery and
intimidation), to more pernicious methods (such as lobbying by
powerful interest groups). In the most severe cases, the interest
group exerts unmitigated control over the regulator, and can
prescribe its objectives, steer its rulemaking, and even supply it
with personnel.119
(53) To address regulatory capture, States must ensure that their
regulatory institutions are immune to pressure from illegitimate
interests. States must lay down adequate safeguards to prevent
conflicts of interest in the regulatory process. These can include
laws that compel public officials and elected representatives to
disclose all meetings with commercial actors, and the subject
matter that was discussed. States should also require regulators
to disclose any potential conflicts of interest, including
professional, familial, and other conflicts. Further, when
regulators make calls for public input on new regulations, they
should guard against the use of unreliable, industry-sponsored
contributions that advance private interests. States should also
consider incorporating a ‘public advocate’ in the regulatory
process, to ensure that the interests of vulnerable marginalised
groups are upheld at each stage of regulation.
E
Conditions for the delegation of public resources
to support private actors involved in social service
provision
(54) Under international human rights law, the State has no
obligation to delegate resources to private social service
providers.120 Therefore, States are not legally obligated to provide
subsidies, or other methods of support to private actors under
their jurisdiction. A common mechanism for directing public
resources to private actors for the provision of social services are
public-private partnerships (PPPs). PPPs vary, but often take the
29
form of long-term contractual arrangements between states and
private actors, which see the private sector assuming a significant
role in the provision of social service infrastructure, or the
services themselves in return for payments, in the form of user
fees, government funding, or other support. These arrangements
often entail significant, binding, and unpredictable costs for the
state, including fees for preparation, frequent renegotiations,
subsidies, and financial guarantees paid by the public purse.
(55) Still in certain contexts, especially in times of crisis or emergency,
it may be necessary for States to temporarily direct public money,
expertise or labour to private actors, in order to ensure social
services are enjoyed by the communities that require them. This,
for example, would be appropriate to avoid the interruption of
water services during emergencies or to enable children with
disabilities to access quality and inclusive education. When States
extend resources to private actors, they must strictly observe the
substantive, procedural, and operational requirements set out
below.
Substantive requirements for the delegation of public resources
(56) Any allocation of public funding to an eligible private actor must
meet all the following substantive requirements: 121
(a)
(c)
it must be a time-bound measure, which the State publicly
demonstrates to be the only effective option to advance the
realisation of human rights in the situation in question in
order to:
(i) ensure short-term access to social services where the
State publicly demonstrates that there is no other
option which would realise the applicable economic,
social, and cultural rights; or
(ii) integrate private institutions that have previously
operated independently into the public social service
system.
it must not foreseeably risk or delay the development of
a public social service system of the highest attainable
quality;
30
(d)
(e)
(f)
(g)
(h)
it must not lead to a diversion of public resources that
would constitute an impermissible retrogressive measure,
in particular by lowering standards for state-delivered
social services;
it must not constitute or contribute to the commercialisation
of the delivery of social services;
it must ensure equal access to the public and does not
privilege access to a specific group or geographical region;
it must not create a foreseeable risk that the funded private
actor could exercise an undue influence on the service or
account for such a substantial part of the system that it
risks undermining economic, social and cultural rights; and
it must not create a foreseeable risk of any other systemic
harm to other social services, paying particular attention
to obligations related to non-discrimination, and equality.
Procedural requirements for the delegation of public resources
(57) Any allocation of public funding to an eligible private actor must
meet all the following procedural requirements:122
(a)
(b)
(c)
before the funding is considered, there must be an adequate
regulatory framework put in place addressing the due
process, rules and modalities for such funding, including
regulations for (b) to (d) below;
before the funding is determined:
(i) the State must publicly demonstrate that such public
funding meets all the substantive, procedural, and
other requirements; and
(ii) the State assesses and publicly demonstrates its
capacity and intent to continuously monitor and
regulate the private actor’s ability to meet the
applicable standards;
the decision to award funding must move through a
participatory, inclusive, transparent, and accountable
consultation process involving a meaningful opportunity
for full and effective participation by all stakeholders. The
process must include human rights impact assessments,
and the State must facilitate full access to all relevant
information; and
31
(d)
the funding must be arranged in such a way that it is
possible in practice to reverse it or to transfer the role of the
private actor to the State.
Operational requirements for the delegation of public resources
(58) Any allocation of public funding to an eligible private actor must
meet all of the following operational requirements:123
(a)
(b)
(c)
(d)
The State must, at minimum, impose the same standards
on private institutions participating in social service
provision that it imposes on public ones, including the
effective protection of working conditions and terms of
employment, labour, and union rights.
States must take all effective measures to overcome as
effectively and expeditiously as possible the inability to
deliver or manage any aspect of the provision of social
services which justified the provision of public funding
to a private actor. In so doing, States must ensure that the
funding reinforces and is regularly assessed against State
capacity to meet their obligations to realise the economic,
social and cultural rights protected under human rights law,
in the short, medium and long term.
Any public funding of an eligible private institution must
be subject to prior, continuous, and retrospective human
rights impact assessments, which are made public, and
are used to continually re-evaluate the contribution of the
funding to the delivery of social services, and if necessary,
change or terminate the funding. The assessment must
measure both the individual and systemic effect of each
private actor receiving the funding, in the short and long
term, and involve all stakeholders, including beneficiaries,
communities, unions, and other civil society organisations.
The cost of the human rights impact assessment, regulation,
and other obligations of the State must be considered
as part of the evaluation of the cost of the arrangement
for funding, with due consideration given to the State’s
obligation to deliver social services of the highest attainable
quality for all to the maximum of its available resources.
32
(e)
(f)
States must make the continued provision of funding
conditional on the fulfilment of the required standards,
and ensure that all contracts permit the State to withdraw
from the funding without prejudice if the standards are
not met, while ensuring the continued enjoyment of social
services. They must withdraw any public funding where
it substantially nullifies or impairs the realisation of the
social, economic, and cultural rights, and the development
of a public social service system.
States must ensure that all private actors receiving state
funds for the delivery of social services make all proprietary
data and material that could help to improve the public
social service system available without a licence, within
a reasonable time defined by law, to the relevant public
authorities. This must be done with due respect for the
right to privacy, and the right of everyone to benefit from
the protection of the moral and material interests resulting
from any scientific, literary, or artistic production of which
they are the author.
Private social service providers ineligible for delegation for public funding
of private actors
(59) States must prohibit the allocation of public funding to a private
actor that:
(a)
(a)
(b)
(c)
(d)
contributes to an adverse systemic impact on the enjoyment
of social services or undermines the realisation of human
rights in any other way;124
abuses the rights to equality and non-discrimination,
including by being selective; or expelling or sorting rightsholders, whether directly or indirectly, on the basis of the
socio-economic disadvantage, or any other prohibited
ground;125
is commercial and excessively pursues its own selfinterest;126
charges fees that substantially undermine access to social
services;127
does not meet any of the public service obligations
applicable;128 and
33
(e)
F
does not comply with all of its domestic or international
financial obligations.129
Human rights consequences for actors other than
States
(60) Principally, this General Comment addresses State parties to
the African Charter. However, as observed in the Commission’s
jurisprudence, States are not the only actors whose conduct can
ignite human rights consequences.130 Domestic and transnational
private actors, as well as intergovernmental organisations, have
had well documented impacts on human rights, both positive
and negative. Therefore, even though this General Comment is
primarily directed at State parties to the Charter, the guidance it
provides can assist intergovernmental organisations and private
actors as well. Issues relevant to both these actors are addressed
below.
Human rights consequences for private actors under the African Charter
(61) The African Charter imposes direct duties on private actors
in Articles 27, 28, and 29.131 Many of these duties have a
binding legal character, including the duty to pay taxes132 and
respect the rights of others,133 which have been outlined in the
Commission’s jurisprudence,134 its soft law standards,135 and its
recommendations to African States.136
(62) These duties affirm the Charter’s central object and purpose,
which is for all members of society - individuals, families, local
communities, non-governmental organisations, and the private
business sector - to work collaboratively to achieve the universal
enjoyment of human rights on the continent. Although private
actors are important stakeholders for the achievement of these
goals, the Charter must never be interpreted as a justification for
commercial activity in the social service sector. Any commercial
actors participating in social service provision does so voluntarily,
and subject to strict requirements under the Charter. One of
these requirements is for private actors to exercise human rights
due diligence to ensure that all their operations do not interfere
34
with the enjoyment of human rights or facilitate abuse of rights
by any third party.
(63) Across the continent, a range of States are implementing
proposals to integrate human rights protection into their
national action plans,137 as part of their wider commitment to
hold private actors accountable for human rights abuses on the
continent. Many of these reflect the content of the UN Guiding
Principles on Business and Human Rights, which provide a
practical framework for private actors to respect human rights in
their operations.
(64) To implement the duties in the Charter, private actors must do
the following:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
put in place internal mechanisms to regularly assess any
adverse impacts their operations, practices, services, and
products may have on human and peoples’ rights;138
integrate the findings of their impact assessments into
corporate culture, management, and operation;139
consult with affected groups and provide platforms for
meaningful participation before, during and after the
project cycle;140
disclose financial and operational information to the public
in an accessible and transparent manner, in accordance
with the relevant freedom of information laws;
pay their fair share of taxes;141
respect labour rights; and
refrain from imposing or facilitating policies that would
nullify or impair State capacity to meet international
human rights obligations.142
Human rights consequences for intergovernmental actors
(65) The AU, the UN, their specialised agencies, and other
intergovernmental actors are critical stakeholders for the
realisation of economic, social and cultural rights on the
continent. These organisations are encouraged to support State
efforts to provide social services and regulate private actor
conduct. This support may include technical cooperation,
35
financial assistance, institutional capacity development, and
knowledge sharing.
(66) States that participate in or transfer their decision-making to an
intergovernmental organisation, including international financial
institutions, or a global fund, must take steps to ensure that the
relevant organisation acts in accordance with the international
human rights obligations of that State. Accordingly, States
must:143
(a)
(b)
(c)
G
closely monitor the conduct of the intergovernmental
organisation, including its policies, omissions, and other
acts, to ensure that it does not interfere with the enjoyment
of social services;
instruct their representatives to the intergovernmental
organisation to oppose policies or other acts that would
nullify or impair the capacity of any State to meet its social
services obligations;144 and
promote policies within the intergovernmental organisation
that enhance States’ abilities to respect, protect, fulfil and
promote human rights.
Reporting obligations
(67) The State reporting process under Article 62 of the African
Charter is an essential mechanism for identifying and reviewing
best practices in social service provision by States and private
actors. To improve this process, State parties must, in their
timely periodic reports to the African Commission, demonstrate
the following:
(a)
(b)
the extent to which economic, social and cultural rights are
protected by their constitution, bill of rights, basic law, other
national legislation and, if applicable, what provisions are
made for derogations, restrictions or limitations;
the extent to which private actors are involved in the
provision of social services, and any reported adverse
effects on human rights;
36
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
the structure of their regulatory framework for private
actors involved in social service provision, including details
about the regulatory bodies involved, the responsibilities
they execute and the actors over which they exercise
jurisdiction;
the extent to which private actors have been held accountable
for human rights abuses under their jurisdiction;
whether the provisions of the Charter and this General
Comment can be and have been invoked or directly enforced
by their courts, tribunals or administrative authorities;
which judicial, administrative and other authorities have
jurisdiction over the implementation of human rights and
social services, and the extent of their competence;
the judicial and other appropriate remedies in place
enabling those directly or indirectly affected to obtain
redress in cases where access to social services has been
denied, with reference to examples of relevant decisions or
case law;
structural or other significant obstacles arising from factors
outside their control that impede the universal provision of
social services;
whether they accept the jurisdiction of the African Court
on Human and Peoples’ Rights, or any other human rights
mechanism and, if so, the nature and progress of all cases
involving it; and
the budget allocations and trends, in percentages of
national or regional budgets or gross domestic product,
allocated specifically to the implementation of the public
social services, together with disaggregated data indicating
what percentage of the budget has gone to private actors
involved in the provision of social services if any.
37
1
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3
4
5
6
7
8
9
10
11
12
13
14
15
African Union ‘Agenda 2063: The Africa we want’, paras 27-31; see also, para 11
referring to ‘the provision of basic services including health, nutrition, education,
shelter, water and sanitation’.
Article 9(2)(b).
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Citizens to Social Protection and Social Security, adopted by the 35th Ordinary
Session of the AU Assembly, held in Addis-Ababa (Ethiopia), on 6 February
2022. The Protocol requires 15 states to ensure its entry into force (art 33(1)).
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The World Bank ‘Benchmarking Infrastructure Development 2020’ (2020), 27.
Competition Commission of South Africa v Dis-Chem Pharmacies Limited CR008Apr20
(8 April 2020), paras 144-145 (‘In our view material price increases of life essential
items such as surgical masks, even in the short run, in a health disaster such as
the Covid-19 outbreak, warrants our intervention’); DG Mahler et al ‘The impact
of COVID-19 (Coronavirus) on global poverty: Why Sub-Saharan Africa might
be the region hardest hit’ (2020) https://blogs.worldbank.org/opendata/impactcovid-19-coronavirus-global-poverty-why-sub-saharan-africa-might-be-regionhardest.
UN Special Rapporteur on the Right to Education ‘Right to education: impact of
the coronavirus disease crisis on the right to education – concerns, challenges and
opportunities’ UN Doc A/HRC/44/39, paras 69-70, 74.
I Schipper ‘The ethics of clinical trials in times of corona’ Centre for research on
multinational corporations 8 July 2020 https://www.somo.nl/the-ethics-of-clinicaltrials-in-times-of-corona/.
O De Schutter et al ‘Covid-19 has exposed the catastrophic impact of privatising
vital services’ 19 October 2020 The Guardian https://www.theguardian.com/
society/2020/oct/19/covid-19-exposed-catastrophic-impact-privatising-vitalservices.
African Commission on Human and Peoples’ Rights ‘Pretoria Declaration on
Economic, Social and Cultural Rights’ (2004).
African Commission on Human and Peoples’ Rights ‘Principles and guidelines
on the implementation of economic, social and cultural rights in the African
Charter on Human and Peoples’ Rights’ (ESCR Guidelines) (2011).
African Commission on Human and Peoples’ Rights ‘State party reporting
guidelines for economic, social and cultural rights in the African Charter on
Human and Peoples’ Rights’ (2012).
African Commission on Human and Peoples’ Rights Resolution 420: on States’
Obligation to Regulate Private Actors Involved in the Provision of Health and
Education Services’ ACHPR/Res. 420 (LXIV) 2019.
African Commission on Human and Peoples’ Rights ‘Guidelines on the Right to
38
16
17
18
19
20
21
22
23
24
25
26
27
Water in Africa’.
African Commission on Human and Peoples’ Rights ‘Resolution 420: on States’
Obligation to Regulate Private Actors Involved in the Provision of Health and
Education Services’ ACHPR/Res. 420 (LXIV) 2019, preambular para 7.
Article 45(1)(b), African Charter where the Commission is tasked ‘to formulate
and lay down principles and rules aimed at solving legal problems relating to
human and peoples’ rights and fundamental freedoms upon which African
Governments may base their legislation’.
African Commission on Human and Peoples’ Rights ‘Concluding observations
& recommendations on the 5th periodic state report of the Republic of Uganda
(2010 – 2012)’, para 36(c).
African Commission on Human and Peoples’ Rights ‘Resolution 289: on the food
crisis in Somalia’ ACHPR/Res.289(EXT.OS/XVI)2014; African Commission
on Human and Peoples’ Rights ‘Resolution 374: on the right to food and food
insecurity in Africa’ ACHPR/ Res. 374 (LX) 2017/. Communication 155/ 96,
Social and Economic Rights Action Centre (SERAC) and Centre for Economic
and Social Rights (CESR) v Nigeria, 27 October 2001, para 64 (‘The right to food
is inseparably linked to the dignity of human beings and is therefore essential
for the enjoyment and fulfilment of such other rights as health, education, work
and political participation’); African Commission on Human and Peoples’ Rights
‘Principles and Guidelines on the Implementation of Economic, Social and
Cultural Rights in the African Charter on Human and Peoples’ Rights’ (2011),
paras 83, 86(a), 86(g), 86(x).
African Commission on Human and Peoples’ Rights ‘Resolution 434: on the
need to develop norms on States’ obligations to regulate private actors involved in
the provision of social services’ ACHPR/Res. 434 (EXT.OS/ XXVI1), para ii.
African Commission on Human and Peoples’ Rights ‘Principles and Guidelines
on the Implementation of Economic, Social and Cultural Rights in the African
Charter on Human and Peoples’ Rights’ (2011).
African Commission on Human and Peoples’ Rights ‘Pretoria declaration on
economic, social and cultural rights in Africa’ (2004), para 10.
African Commission on Human and Peoples’ Rights ‘Guidelines on the right to
water in Africa’, preambular para 19.
African Commission on Human and Peoples’ Rights ‘Guidelines on the right to
water in africa’, para 32.2 (the Commission affirms that water services must not be
delegated where delegation would ‘constitute or contribute to the marketisation
or commercialisation of water’).
See for example, African Commission on Human and Peoples’ Rights
‘Concluding Observations & recommendations on the 5th periodic state report
of the Republic of Uganda (2010 – 2012)’, para 36(c) (noting how “[t]he increase
in the establishment of private schools, […] allegedly raises the concern of the
Government gradually releasing itself from the obligation to provide quality public
education’) (emphasis added).
African Commission on Human and Peoples’ Rights ‘Concluding observations
and recommendations on the 5th periodic state report of the Republic of Uganda
(2010-2012)’ (2015), para 80.
UN Special Rapporteur on the Right to Education ‘Protecting the right to
education against commercialization’ UN Doc A/HRC/29/30, para 97 (‘The
Special Rapporteur would like to emphasize the need for States to […] uproot
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28
29
30
31
32
33
34
35
36
37
38
39
40
commercialization in education’) (emphasis added).
UN Special Rapporteur on Extreme Poverty ‘Privatisation and human rights’
UN Doc A/73/396, para 83 (‘[privatization’s] consequences for human rights
are overwhelmingly negative. Human rights standards are rarely included
in privatization agreements. They are systematically absent from guidelines
governing both processes and outcomes’) (emphasis added).
UN Special Rapporteur on the right to water ‘Risks and impacts of the
commodification and financialization of water on the human rights to safe
drinking water and sanitation’ UN Doc A/76/159 (‘the commodification of
water […] puts at risk the exercise of human rights, especially for those living in
poverty’) (emphasis added).
UN Special Rapporteur on Adequate housing as a component of the right to
an adequate standard of living, and on the right to non-discrimination in this
context ‘Financialization of housing and the right to adequate housing’ UN
Doc A/HRC/34/51, para 77, calling for a (‘transformation of the relationship
between the State and the financial sector, whereby human rights implementation
becomes the overriding goal, not a subsidiary or neglected obligation’.
UN Special Rapporteur on the right to water ‘Service regulation’ UN Doc A/
HRC/36/45, para 70 (‘Community-based organizations are taking on an
important role in informal [water] service provision, stepping in where the State
is not involved in such activities’); UNDP ‘Adaptive community water initiative:
Delivering water and sanitation to poor communities’ (2012), 2 & 4.
UN Special Rapporteur on the right to education ‘Right to education: the cultural
dimensions of the right to education, or the right to education as a cultural right’
UN Doc A/HRC/47/32, para 42.
O De Schutter & T Dedeurwaerdere Social innovation in the service of social and
ecological transformation: The rise of the enabling state (2021).
African Commission on Human and Peoples’ Rights ‘Guidelines on the right to
water in africa’, para 8.7.
UN Special Rapporteur on the Right to Education ‘Public private partnerships
and the right to education’, UN Doc A/70/342, para 82.
CESCR Committee ‘General Comment 24: State obligations under the
International Covenant on Economic, Social and Cultural Rights in the context of
business activities’ UN Doc E/C.12/GC/24, para 21; see also CRC Committee
‘General Comment 5: General measures of implementation of the Convention
on the Rights of the Child’ (‘The Committee emphasizes that States parties to the
Convention have a legal obligation to respect and ensure the rights of children as
stipulated in the Convention, which includes the obligation to ensure that nonState service providers operate in accordance with its provisions, thus creating
indirect obligations on such actors’), para 6.
African Commission on Human and Peoples’ Rights ‘Principles and guidelines
on the implementation of economic, social and cultural rights in the African
Charter on Human and Peoples’ Rights’ (2011), para 3(a).
African Commission on Human and Peoples’ Rights ‘Principles and guidelines
on the implementation of economic, social and cultural rights in the African
Charter on Human and Peoples’ Rights’ (2011), para 3(c).
African Commission on Human and Peoples’ Rights ‘Principles and guidelines
on the implementation of economic, social and cultural rights in the African
Charter on Human and Peoples’ Rights’ (2011), para 3(d).
African Commission on Human and Peoples’ Rights ‘Principles and guidelines
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41
42
43
44
45
46
47
48
49
50
51
52
53
on the implementation of economic, social and cultural rights in the African
Charter on Human and Peoples’ Rights’ (2011), para 10.
African Commission on Human and Peoples’ Rights ‘Principles and guidelines
on the implementation of economic, social and cultural rights in the African
Charter on Human and Peoples’ Rights’ (2011), para 7.
African Commission on Human and Peoples’ Rights ‘Concluding observations
& recommendations on the 5th periodic state report of the Republic of Uganda
(2010 – 2012)’, para 80. For the risk of discrimination outside of Africa, see UN
Special Rapporteur on the Right to Education ‘Privatization and the right to
education’ UN Doc A/69/402, para 32.
S Choonara & J Eyles ‘Out of control: profit-seeking behaviour, unnecessary
medical procedures and rising costs of private medical care in South Africa’
(2016) 1 BMJ Global Health 13; S Subramanian et al ‘Financial barriers related
to breast cancer screening and treatment: a cross-sectional survey of women in
Kenya’ (2019) 22 Journal of Cancer Policy 5.
Article 12(1), African Charter on Democracy, Elections and Governance.
Article 27(2), African Charter on Democracy, Elections and Governance. See also
the African Charter on Popular Participation in Development and Transformation
E/ ECA/ CM/ 16/ RES/ 691(XXV), para 7 (which defines popular participation
as ‘the empowerment of the people to effectively involve themselves in creating
the structures and designing the policies and programmes that serve the interests
of all as well as to effectively contribute to the development process and share
equitably in its benefits’).
Human Rights Committee ‘General Comment 25: The right to participate in
public affairs, voting rights and the right of equal access to public service’ UN
Doc CCPR/C/21/Rev.1/Add.7, para 6.
African Commission on Human and Peoples’ Rights ‘Guidelines on the Right to
Water in Africa’, para 8.1; African Commission on Human and Peoples’ Rights
‘Principles and Guidelines on the Implementation of Economic, Social and
Cultural Rights in the African Charter on Human and Peoples’ Rights’ (2011),
para 92 (i); Article 5(1), Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Citizens to Social Protection and Social Security.
Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf
of Endorois Welfare Council) v Kenya, Communication 276/ 03, 25 November 2009,
paras 162 and 291.
UN Special Rapporteur on the rights of indigenous peoples ‘Human rights
impacts and consultation processes’ UN Doc A/HRC/45/34, paras 59-63.
SERAC (n 18), para 5 (‘The government has also ignored the concerns of Ogoni
communities regarding oil development, and has responded to protests with
massive violence and executions of Ogoni leaders’).
African Commission on Human and Peoples’ Rights ‘Principles and Guidelines
on the Implementation of Economic, Social and Cultural Rights in the African
Charter on Human and Peoples’ Rights’ (2011), para 48.
African Commission on Human and Peoples’ Rights ‘Cotonou Declaration on
strengthening and expanding the protection of all human rights defenders in
Africa’, para 2.
UN Special Rapporteur on the Right to Health ‘Effective and full implementation
of the right to health framework, including justiciability of ESCR and the right to
health; the progressive realisation of the right to health; the accountability deficit
of transnational corporations; and the current system of international investment
41
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
agreements and the investor-State dispute settlement’ UN Doc A/69/299, para
33 ([…] access to health information, is not only an essential element of the
right to health, but also a critical tool for monitoring implementation). CESCR
Committee ‘General Comment 19: The right to social security’ E/C.12/GC/19,
para 26:
UN Special Rapporteur on the Right to Health ‘Corruption and the right to
health’ A/72/137, paras 25 & 34.
Principle 1(1), African Commission on Human and Peoples’ Rights ‘Declaration
of Principles on Freedom of Expression and Access to Information in Africa’.
African Commission on Human and Peoples’ Rights ‘Model Law on Access to
Information for Africa’.
Principles 26 & 28, African Commission on Human and Peoples’ Rights
‘Declaration of Principles on Freedom of Expression and Access to Information
in Africa’.
Principles 26(1)(b), African Commission on Human and Peoples’ Rights
‘Declaration of Principles on Freedom of Expression and Access to Information
in Africa’.
Principle 29(1) African Commission on Human and Peoples’ Rights ‘Declaration
of Principles on Freedom of Expression and Access to Information in Africa’.
See for example M Langford & S Kahanovitz ‘South Africa: Rethinking
Enforcement Narratives’ in M Langford, CA Rodríguez Garavito & J Rossi (eds)
Social rights judgments and the politics of compliance: making it stick (2016), 315, 322333.
CESCR Committee ‘General Comment 3: The nature of States parties’
obligations’ UN Doc E/1991/23, para 9; UN Rapporteur on the Right to safe
drinking water and sanitation ‘Progressive realization of the human right to water
and sanitation’ UN Doc A/HRC/45/10, para 8; African Commission ‘ESCR
Guidelines’ (n 12 above), paras 13-15.
UN Rapporteur on the Right to safe drinking water and sanitation ‘Progressive
realization of the human right to water and sanitation’ UN Doc A/HRC/45/10,
paras 8 & 51.
CESCR Committee ‘General Comment 3: The nature of States parties’
obligations’ UN Doc E/1991/23, para 9.
UN Rapporteur on the Right to safe drinking water and sanitation ‘Progressive
realization of the human right to water and sanitation’ UN Doc A/HRC/45/10,
para 57 (‘A clear example of direct retrogression and a violation of human rights
to water and sanitation is the disconnection of water services because of the
inability to pay.’).
CESCR Committee ‘General Comment 19: The right to social security E/C.12/
GC/19, para 42 (‘There is a strong presumption that retrogressive measures taken
in relation to the right to social security are prohibited under the Covenant’).
UN Rapporteur on the Right to safe drinking water and sanitation ‘Progressive
realization of the human right to water and sanitation’ UN Doc A/HRC/45/10,
para 57.
Reflects the content of Principle 45, Abidjan Principles; African Commission on
Human and Peoples’ Rights ‘Guidelines on the Right to Water in Africa’, para
6.3.
Principle 45(a), Abidjan Principles.
Principle 45(f), Abidjan Principles.
Communication 301/ 05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former
42
71
72
73
74
75
76
77
78
79
80
Dergue officials) v Ethiopia, 7 November 2011, para 130; see also Communication
292/ 04, Institute for Human Rights and Development ; Communication 74/92,
Commission nationale des droits de l’Homme et des libertés v Chad, 11 October 1995,
para 20.
ACHPR ‘General Comment 4: The Right to Redress for Victims of Torture and
Other Cruel, Inhuman or Degrading Punishment or Treatment’, para 8; ‘General
Comment 24: State obligations under the International Covenant on Economic,
Social and Cultural Rights in the context of business activities’ UN Doc E/C.12/
GC/24, paras 34.
CESCR Committee IDG v Spain, paras. 14 and 15; ‘General Comment 24: State
obligations under the International Covenant on Economic, Social and Cultural
Rights in the context of business activities’ UN Doc E/C.12/GC/24, paras 34.
‘General Comment 24: State obligations under the International Covenant on
Economic, Social and Cultural Rights in the context of business activities’ UN
Doc E/C.12/GC/24, para 44.
Communication 355/07, Hossam Ezzat & Rania Enayet (represented by Egyptian
Initiative for Personal Rights & INTERIGHTS) v The Arab Republic of Egypt, para
182; Principle 88, Abidjan Principles; CCPR Committee ‘General Comment 31:
Nature of the general legal obligation imposed on States Parties to the Covenant’
UN Doc CCPR/C/21/Rev.1/Add.13, para 16.
UN Working Group on the issue of human rights and transnational corporations
and other business enterprises ‘Report on the First African Regional Forum
on Business and Human Rights’ UN Doc A/HRC/29/28/Add.2, para 32(b);
OHCHR ‘Improving accountability and access to remedy for victims of businessrelated human rights abuse’ UN Doc A/HRC/32/19, para 24-25.
Principle 27, Maastricht Principles.
Article 13(3), African Charter; See also African Commission on Human and
Peoples’ Rights Communications 25/ 89- 47/ 90- 56/ 91- 100/ 93, Free Legal Assistance
Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de
l’Homme, Les Témoins de Jehovah v Democratic Republic of Congo, 4 April 1996, para
47 (the failure of the Government to provide basic services such as safe drinking
water and electricity and the shortage of medicine […] constitutes a violation of
Article 16) (own emphasis added).
CESCR Committee ‘General Comment 14: The right to the highest attainable
standard of health’ UN Doc E/C.12/2000/4, para 12(a) (Where the CESCR
Committee addresses States’ ‘core obligation’ to maintain ‘functioning public
health and health-care facilities’).
See for example Section 34(1), South African Schools Act 84 of 1996, (which
provides that the State ‘must fund public schools from public revenue’). Further
Section 22, Kenyan Health Act 21 of 2017 (requires Kenya to establish ‘publicly
owned health institutions, including hospitals, health centers, pharmacies, clinics
and laboratories, as are deemed necessary for the promotive, preventive and
rehabilitative health services.’) (emphasis added). Article 8, Constitution of the
Central African Republic 2016 (‘The State guarantees to all the right of access
to the establishments of public care as well as the benefit of adequate medical
treatments provided by professionals trained and endowed with the necessary
equipment’) (emphasis added).
See African Commission on Human and Peoples’ Rights ‘Concluding
Observations: Uganda 5th Periodic Report’, para 80: ( noting with concern that
privatisation could lead to ‘the Government gradually releasing itself from the
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81
82
83
84
85
86
87
88
89
obligation to provide quality public education, which could result in discrimination
against children from low-income households’) (emphasis added).
CESCR Committee ‘Concluding Observations: Kenya’ UN Doc E/C.12/
KEN/CO/2-5, para 58: (‘the Committee recommends that the State party take
all necessary measures to strengthen its public education sector’) (emphasis added);
‘General Comment 24: State obligations under the International Covenant
on Economic, Social and Cultural Rights in the context of business activities’
UN Doc E/C.12/GC/24, para 23 (‘The obligation to fulfil requires States […]
in certain cases, to directly provide goods and services essential to such enjoyment’)
(emphasis added); CESCR Committee ‘CESCR Committee ‘General Comment
13: The right to education’ UN Doc E/C.12/1999/10, para 48 (‘it is clear that
article 13 regards States as having principal responsibility for the direct provision
of education in most circumstances’); CESCR Committee ‘General Comment
13: The right to education’ UN Doc E/C.12/1999/10, para 48 (‘it is clear that
article 13 regards States as having principal responsibility for the direct provision of
education in most circumstances’) (emphasis added); CESCR Committee ‘General
Comment 19: The right to social security’ E/C.12/GC/19, para 46 (Where social
security schemes […] are operated or controlled by third parties, States parties
retain the responsibility of administering the national social security system and
ensuring that private actors do not compromise equal, adequate, affordable, and
accessible social security’).
CESCR ‘Concluding observations on the initial report of Indonesia’ UN Doc
E/C.12/IDN/CO/1, paras 11(b) & 12(a); CRC Committee ‘Concluding
observations: Paraguay’ UN Doc CRC/C/PRY/CO/3, para 58(e).
CESCR ‘Concluding observations on the third periodic report of the Bolivarian
Republic of Venezuela’ UN Doc E/C.12/VEN/CO/3, para 27.
CESCR ‘Concluding observations on the initial to third reports of the United
Republic of Tanzania’ UN Doc E/C.12/TZA/CO/1-3; CESCR ‘Concluding
observations:
Ethiopia’ Doc E/C.12/ETH/CO/1-3, para 20; CESCR
‘Concluding observations on the initial and second periodic reports of Djibouti’
UN Doc E/C.12/DJI/CO/1-2, para 26.
African Commission ‘ESCR Guidelines’ (n 12 above), para 33 (‘States should
ensure the provision of basic social services (such as water, electricity, education
and health care)’), African Commission on Human and Peoples’ Rights
Communications 25/ 89- 47/ 90- 56/ 91- 100/ 93, Free Legal Assistance Group, Lawyers’
Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins
de Jehovah v DRC, 4 April 1996, para 47.
CESCR Committee ‘Concluding Observations on the Periodic Report of Kenya’
UN Doc E/C.12/KEN/CO/2-5, paras 57-58 ( ‘inadequacies in the public
schooling system have led to the proliferation of so-called ”low-cost private
schools” which has led to segregation or discriminatory access to education
particularly for disadvantaged and marginalized children’).
CESCR Committee ‘General Comment 13: The right to education’ UN Doc
E/C.12/1999/10, para 57.
CRC Committee in ‘General Comment 19: Public budgeting for the realisation of
children’s rights’ UN Doc CRC/C/GC/19, para 11; A Nolan, R O’Connell & C
Harvey Human rights and public finance (2013) 7-9.
African Commission on Human and Peoples’ Rights ‘Principles and Guidelines
on the Implementation of Economic, Social and Cultural Rights in the African
44
Charter on Human and Peoples’ Rights’ (2011), para 2.
UN Special Rapporteur on the human rights to safe drinking water and sanitation
‘Progressive realization of the human rights to water and sanitation’ UN Doc
A/HRC/45/10, para 20; R Robertson ‘Measuring State compliance with the
obligation to devote the “maximum of available resources” to realizing economic,
social and cultural rights’ 16 Human Rights Quarterly 695–697.
91 CRC Committee in ‘General Comment 19: Public budgeting for the realisation of
children’s rights’ UN Doc CRC/C/GC/19, para 21.
92 CRC Committee in ‘General Comment 19: Public budgeting for the realisation of
children’s rights’ UN Doc CRC/C/GC/19, paras 67 & 68.
93 UN Special Rapporteur on the right to water Financing, budgeting and budget
tracking for the realisation of the human rights to water and sanitation (2014), 35.
94 Principle 15, Abidjan Principles. Minor adjustments made to eliminate references
to education.
95 UN Special Rapporteur on the right to education ‘Right to education in
emergency situations’ UN Doc A/HRC/8/10, para 67 (‘The Special Rapporteur
underlines that emergencies do not relieve States from their obligation to take
all appropriate measures to ensure the realization of the right to education [and
to ensure] financial support for primary education in order to guarantee that it
continues to be available during emergencies’).
96 UN Special Rapporteur on the right to education ‘Right to education: impact
of the coronavirus disease crisis on the right to education – concerns, challenges
and opportunities’ UN Doc A/HRC/44/39, para 83(d) (States should develop
emergency education preparedness within national education systems globally
and train educational planners at all levels. These plans should [guarantee] the
right to education for all and the availability, accessibility, acceptability and
adaptability framework’). para 95; CRC Committee in ‘General Comment 19:
Public budgeting for the realisation of children’s rights’ UN Doc CRC/C/GC/19,
para 31 (The immediate and minimum core obligations imposed by children’s
rights shall not be compromised by any retrogressive measures, even in times of
economic crisis’).
97 See D Elson, R Balakrishnan & J Heintz ‘Public finance, maximum available
resources and human rights’ in A Nolan, R O’Connell and C Harvey (eds) Human
Rights and Public Finance Budgets and the Promotion of Economic and Social Rights
(2013), 23.
98 D Elson, R Balakrishnan & J Heintz ‘Public finance, maximum available
resources and human rights’ in A Nolan, R O’Connell & C Harvey (eds) Human
rights and public finance: budgets and the promotion of economic and social rights (2013),
23.
99 The Office of the United Nations High Commissioner for Human Rights
(OHCHR) in ‘Realizing human rights through government budgets’ UN Doc
HR/PUB/17/3XX, 127.
100 CESCR Committee ‘General Comment 15: The right to water’ UN Doc
E/C.12/2000/11, para. 24; Articles 13(3) & 4, International Covenant on
Economic, Social and Cultural Rights; Article 29(2), Convention on the Rights
of the Child; CESCR Committee ‘General Comment 13: The right to education’
UN Doc E/C.12/1999/10, para 60; CRC Committee ‘General Comment 16:
State obligations regarding the impact of the business sector on children’s rights’
UN Doc CRC/C/GC/16, para 53; UN Special Rapporteur on the Right to
Education ‘Privatization and the right to education’ UN Doc A/69/402, paras
90
45
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
32, 85; SL Murthy ‘The human right(s) to water and sanitation: history, meaning
and the controversy over privatization’ (2013) 31 Berkeley Journal of International
Law 142.
African Commission on Human and Peoples’ Rights ‘Guidelines on the Right to
Water in Africa’, para 32.5; African Commission on Human and Peoples’ Rights
‘Principles and Guidelines on the Implementation of Economic, Social and
Cultural Rights in the African Charter on Human and Peoples’ Rights’ (2011),
para 7.
Communication 155/ 96, Social and Economic Rights Action Center (SERAC) and
Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 46.
CCPR Committee ‘General Comment 31: Nature of the general legal obligation
imposed on States Parties to the Covenant’ UN Doc CCPR/C/21/Rev.1/
Add.13, para 8 (where the Committee notes the obligation incumbent on States to
‘exercise due diligence to prevent, punish, investigate or redress the harm caused
by […] private persons or entities); Ximenes-Lopes v Brazil IACtHR Series C 149
(2006), para 85 (‘the acts performed by any entity, either public or private, which is
empowered to act in a State capacity, may be deemed to be acts for which the State
is directly liable, as it happens when services are rendered on behalf of the State’).
See for example, services such as insurance in, Article 5(2), Protocol to the
African Charter on Human and Peoples’ Rights on the Rights of Citizens to
Social Protection and Social Security.
UN Special Rapporteur on the right to water ‘Service regulation’ UN Doc A/
HRC/36/45, para 41.
For example, in the context of the right to health, regulatory standards should
meet the criteria outlined in CESCR Committee ‘General Comment 14: The
right to the highest attainable standard of health’ UN Doc E/C.12/2000/4, read
together with
CESCR Committee ‘General Comment 15: The right to water’ UN Doc
E/C.12/2000/11, para 37(a).
141 Resolution on Access to Health and Needed Medicines in Africa - ACHPR/
Res.141(XXXXIV)08;
CESCR Committee ‘General Comment 19: The right to social security’ E/C.12/
GC/19, para 29.
UN Special Rapporteur on Adequate housing as a component of the right to an
adequate standard of living, and on the right to non-discrimination in this context
‘Guidelines for the Implementation of the Right to Adequate Housing’ UN Doc
A/HRC/43/43, para 69(ii).
CRC Committee ‘General Comment 16: State obligations regarding the impact
of the business sector on children’s rights’ UN Doc CRC/C/GC/16, para 53.
Abidjan Principles, Principle 55.
African Commission on Human and Peoples’ Rights ‘Guidelines on the Right to
Water in Africa’, para 32.6.
UN Special Rapporteur on the Right to Water ‘Different levels and types of
services and the human rights to water and sanitation’ UN Doc A/70/203, para
46 (Noting that in many contexts ‘[a] regulatory framework and standards for
piped [water] systems are generally available, [but] are not always effectively put
in place and monitored.’)
Principle 29(1), African Commission on Human and Peoples’ Rights ‘Declaration
of Principles on Freedom of Expression and Access to Information in Africa’.
CESCR Committee ‘Concluding observations: Canada’ UN Doc E/C.12/CAN/
46
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
C0/4, para 43 (Calling on Canada to ‘ensure that civil legal aid with regard
to economic, social and cultural rights is provided to poor people’ under its
jurisdiction).
UN Special Rapporteur on the right to water ‘Service regulation’ UN Doc A/
HRC/36/45, para 55.
SA Shapiro ‘The complexity of regulatory capture: diagnosis, causality and
remediation’ 17 Roger Williams University Law Review, 101, 117; GJ Stigler
‘The Theory of Economic Regulation’ (1971) The Bell Journal of Economics and
Management Science 3.
EM Wirsching ‘The revolving door for political elites: an empirical analysis of
the linkages between government officials’ professional background and financial
regulation’
https://www.oecd.org/corruption/integrity-forum/academicpapers/Wirsching.pdf
See for example: Belgian Linguistic Case (No 2) (1979–80) 1 EHRR 252 (European
Court of Human Rights) paras 7-13; Lindgren v Sweden, Communication No
299/1988; UN Doc. CCPR/C/40/D/298-299/1988 (1990); Carl Henrik Blom v
Sweden, Communication No. 191/1985, UN Doc CCOR/OP/2.
Principle 65, Abidjan Principles & African Commission on Human and Peoples’
Rights ‘Guidelines on the Right to Water in Africa’, para 32.2.
Principle 66 of the Abidjan Principles.
Principle 67 of the Abidjan Principles.
Principle 73(f), Abidjan Principles.
Principle 73(a), Abidjan Principles.
Principle 73(b), Abidjan Principles.
Principle 73(c), Abidjan Principles.
Principle 73(d), Abidjan Principles.
Principle 73(e), Abidjan Principles.
Communication 155/ 96, Social and Economic Rights Action Center (SERAC) and
Center for Economic and Social Rights (CESR) v Nigeria, 27 October 2001, para 54;
Communication 301/ 05, Haregewoin Gebre- Sellaise & IHRDA (on behalf of former
Dergue officials) v Ethiopia, 7 November 2011, para 130; Communication 292/ 04,
Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh &
13 others) v Angola, 22 May 2008, para 83.
Articles 27-29, African Charter on Human and Peoples’ Rights.
Article 29(6), African Charter on Human and Peoples’ Rights.
Article 27(2), African Charter on Human and Peoples’ Rights.
Communications 105/ 93, 128/ 94, 130/ 94 and 152/ 96, Media Rights Agenda,
Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v
Nigeria, October 1998, paras 68 and 69 (‘The only legitimate reasons for limitations
to the rights and freedoms of the African Charter are found in Article 27.2, that
is that the rights of the Charter “shall be exercised with due regard to the rights
of others, collective security, morality and common interest.”’). See also African
Court on Human and Peoples’ Rights, Lohé Issa Konaté v Burkina Faso, App. No.
004/ 2013, Judgment on the Merits, 5 December 2014, para 134.
African Commission on Human and Peoples’ Rights ‘Advisory note to the African
group in Geneva on the legally binding instrument to regulate in international
human rights law, the activities of transnational corporations and other business
enterprises (legally binding instrument)’ 2021, at 4; Guidelines and Principles
on Economic, Social and Cultural Rights in the African Charter on Human and
Peoples’ Rights, October 2011, para. 15 (‘the duty of the individual to pay taxes
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136
137
138
139
140
141
142
143
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imposed by the African Charter implies that there is an obligation on the State to
institute an effective and fair taxation system and a budgeting process).
African Commission on Human and Peoples’ Rights ‘Advisory note to the African
group in Geneva on the legally binding instrument to regulate in international
human rights law, the activities of transnational corporations and other business
enterprises (legally binding instrument)’ 2021, at 4 (‘Under the African Charter,
obligations of business enterprises towards rights holders have a clear legislative
basis. Article 27 of the African Charter provides for the duties of individuals and
its sub-provision 2 lays down the obligation to exercise rights ‘with due regard
to the rights of others’. Clearly, if this obligation can be imposed on individuals,
there is an even stronger moral and legal basis for attributing these obligations to
corporations and companies.’).
See for example, Kenya https://globalnaps.org/country-issue/human-rightsdue-diligence-kenya/; Uganda ‘National Action Plan: Business and Human
Rights’; Tanzania ‘National Human Rights Action Plan’ http://www.ohchr.org/
Documents/Issues/Education/Training/actions-plans/Excerpts/Tanzania_
en%202013-2017.pdf.
UN Working Group on the issue of human rights and transnational corporations
and other business enterprises ‘Corporate human rights due diligence – emerging
practices, challenges and ways forward’ UN Doc A/73/163, para 10(a); Principle
13(a), UN Guiding Principles on Business and Human Rights.
UN Working Group on the issue of human rights and transnational corporations
and other business enterprises ‘Corporate human rights due diligence – emerging
practices, challenges and ways forward’ UN Doc A/73/163, para 10(b); Principle
19(b), Guiding Principles on Business and Human Rights.
CESCR Committee ‘General Comment 24: State obligations under the
International Covenant on Economic, Social and Cultural Rights in the context
of business activities’ UN Doc E/C.12/GC/24, para 18.
Article 29(6), African Charter.
Principle 76, Abidjan Principles.
Principle 22, Abidjan Principles.
Principle 76, Abidjan Principles.
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African Commission on
Human and Peoples’ Rights
GENERAL COMMENT 7
STATE OBLIGATIONS UNDER THE AFRICAN CHARTER ON
HUMAN AND PEOPLES’ RIGHTS IN THE CONTEXT OF
PRIVATE PROVISION OF SOCIAL SERVICES