Reform: Finance

 

The Perils of Sovereign Debts on the Progressive Realisation of Economic, Social and Cultural Rights in The Gambia

 

By Sainey Bah, LLB University of the Gambia, Faculty of Law; LLB University of the Gambia; LLM Human Rights and Democratisation, University of Pretoria and Makerere University).

 

Abstract

 

The Gambia is one of the poorest countries in the world that heavily depends on loans and grants to finance critical socio-economic services. However, the paradox is that even where such debts and loans are contracted to alleviate socio-economic distress arising from fiscal deficit, their servicing continues to present a challenge to the ability of the state to progressively realise its Economic Social and Cultural Rights (ESCR) obligations under international human rights law. This is even more pronounced in the adoption of retrogressive policies that exacerbate the ESCR deprivation of Gambians. This article seeks to analyse the impacts of sovereign debt on the realisation of ESCRs in the Gambia, and the need to ensure accountability and responsibility for ESRCs violations that arise because of debt management and contraction between the Gambia and creditors. To that end, relying on the current human rights structures in the domestic and African Human Rights system, the research advances a case for ensuring accountability for ESCRs deprivation aligned with sovereign debts.

 

Introduction

 

Despite recent projections that the Gambia’s economy is growing at a rate of 2.2% in 2016, the country remains the poorest in the Sub-Saharan Africa with over 60% of its population uncomfortably sitting below the international poverty line.[1] In 2015, the United Nations (UN) Committee on Economic, Social, and Cultural Rights (CESCR) in its concluding observations on the initial report of the Gambia expressed concern about the high prevalence of poverty in the Gambia and the absence of normative basis to ensure the accountability of government for ESCR deprivations.[2] Therefore, economic growth is not translating into human development, partly due to significant deficiency in social spending as critical funds that could finance socio-economic services are spent to discharge the countries’ debt burden.

 

This research raises fundamental questions of accountability and responsibility for ESCR deprivations that arise because of sovereign debt in the Gambia. Sovereign debts are usually contingent on the implementation of economic and fiscal measures that frustrate the development aspirations and the efforts of Sub-Saharan African countries in the fulfilment of their ESCRs obligations. This paper is both a critical interdisciplinary reflection on the link between sovereign debt and ESCR deprivation in the context of the Gambia, and a venture to give a scholarly attention to the normative and legal challenges of ensuring accountability and responsibility arising from measures aligned to sovereign debt. 

 

The human rights language that is now ubiquitous is gradually emerging in the context of sovereign debts and loan conditionalities with its consequential effects of extending beyond mere contractual obligations between debtors and creditors to establish grounds for responsibility and accountability for ESCR deprivations.  The Gambia is one of the poorest countries in the world that heavily depends on loans and grants to finance critical socio-economic services. However, the paradox is that even where such debts are contracted to alleviate socio-economic distress arising from fiscal deficit, their servicing continues to present a challenge to the ability of the state to progressively realise its ESCR obligations under domestic and international human rights law. The recent Appropriation Bill 2018 indicates that over 30% is allocated to National Debt Service, which compels the state to deprioritise critical social services such as health, education, social security and agriculture.[3]

 

There is an emerging commitment in the enforcement of ESCR at international, regional and domestic levels. At the international level, the commitment to protect and enforce the material well-being of individuals has led to the infusing of human rights into international development agendas, and recently culminated to the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR).[4] At the African regional level there is a slow emergence of ESCR jurisprudence in the decisions of the African Commission on Human and Peoples’ Rights, and a proliferation of initiatives to both eradicate poverty in Africa and mainstream ESCR in the development agenda and aspiration of the African Union. The outcome of the latter has led to the adoption of New Partnership for Africa’s Development (NEPAD) among other initiatives to eradicate poverty through the adoption of sound economic and fiscal policies in Africa. The adoption of NEPAD as a continent-wide, developmental blueprint was also intended to articulate the terms of external development cooperation between African states and the rest of the world.[5] At the domestic level, courts have become more assertive in protecting and enforcing ESCR across Africa and beyond by largely relying on a transformative, constitutional interpretation of policy objectives.[6]

 

However, these achievements are seemingly offset by the impacts of sovereign debt and loan conditionalities that influence the prioritisation of ESCR in the fiscal policies of Sub-Saharan, African states. Despite rapid and increased attention of ESCR in recent times, it will be catastrophic to underestimate the impacts of states’ fiscal policies on ESCR or ignore the absence of international and domestic accountability for deprivations arising from sovereign debts. Using ESCR as interface, sovereign debt in the Gambia must be revisited.

 

The Gambia is a listed Highly Indebted Poor Countries (HIPC) and benefited from the Multilateral Debt Relief Initiative (MDRI) meant to alleviate the debt burden of poor countries in the world. Thus, the Gambia is not eligible to borrow from International Bank for Reconstruction and Development (IBRD). Despite benefiting from the MDRI, the Gambia has one of the highest sovereign debts in Sub-Saharan Africa proportional to its GDP.[7] Despite being an emerging democracy with prospects for economic growth, the Gambia maintains a high prevalence of poverty, inequality, marginalisation, illiteracy, unemployment and with serious socio-economic policy deficits, which positions the Gambia lowest on the UN Human Development index.[8] This paper therefore advances a case for the deployment of a coherent and human rights friendly framework that will guide the procurement and implementation of sovereign debts and agreements in order to mitigate their impacts on ESCR. One approach could be the utilisation of the African regional human rights system with its tool of periodic reviews and complaint mechanisms to anchor and monitor the impacts of sovereign debt on states’ ESCR obligations.

 

Given the crosscutting nature of the topic, this paper uses diverse of materials from economics, trade, fiscal policy, welfare policies, and law. These materials are analysed using the prism of ESCR. The study also attempts a critical analysis of ESRC and the obligations they engender for states, which forms the basis for questioning the actions of the Gambian government in sovereign debt contraction and management to support the hypothesis that states should not enter into financial arrangements that will compromise their ability to discharge their ESCRs obligations. It will also serve as the basis to support the hypothesis that loan servicing compromises ESCR in the Gambia. This article further analyses the economy of the Gambia to ascertain whether positive economic outlooks translate into practical implementation of ESCR, and if not, asks whether sovereign debt could be one of the major militating factors in the realisation of ESCR at a time when the economic growth is seemingly floated as one of the achievements of the new government since 2016.

 

Locating the Paradox of Sovereign Debts and ESCRs

 

Although there is adequate evidence that suggests a correlation between widespread ESCRs deprivation in Sub-Saharan Africa,[9] little efforts have been made to ensure domestic and international accountability for the violations of ESCRs caused by debt arrangements between Sub-Saharan African countries and domestic and international lenders.[10] The problem is further complicated by the absence of any framework in Africa that is adequately framed to assist policy makers in making difficult choices concerning sovereign loans. The main international instrument on ESCRs, ICESCR hitherto provides no substantive guidance and neither the CESCR also has provided any guidance.

 

The scarce resources that are badly needed to fund critical socio-economic programmes end up servicing loan repayments that can last for years. The implications that result from such loan repayments can be catastrophic to ESCRs. There is no doubt that loan agreements come with conditions that are not only averse to ESCRs but can also be perilous to the development aspiration of Sub-Saharan African countries.[11] Ironically, the terms of loans and their conditions determined by lenders and institutions to ameliorate adverse consequences are not alive to the domestic realities of Sub-Saharan Africa. Loan agreements also come with obligations to ensure economic adjustments, fiscal policy and budgetary reforms that put states in a dilemma to fulfil their ESCRs obligation on the one hand and equally ensure the operationalization of their contractual obligations.

 

Given the above conditions, the economies of most Sub-Saharan countries are more aligned to discharge their debt burdens than to enhance domestic realisation of ESCR for their citizens including marginalised and vulnerable groups. Consequently, Sub-Saharan Africa remains a dwelling for absolute poverty, high level of inequality, unemployment, social and economic exclusion, high prevalence of preventable diseases, high child and maternal mortality and unprecedented underdevelopment. The challenges to ensure the domestic realisation of ESCR are deeper than an alleged reluctance of states to direct resources towards the enjoyment of ESCR. Furthermore, the challenges emanate from sovereign debt and loan conditionalities. Debt conditionalities such as austerity measures, the privatisation of state enterprises, structural adjustments, trade liberalisation, and budget cutting often have negative consequences on the realisation of ESCR – thereby deepening inequality and poverty in Sub-Saharan Africa.

 

Theoretical Framework

 

This research is premised on the theory that there is a correlation between the massive ESCR deprivation in the Gambia and the conditions of sovereign debts; and all actors that take part in their implementation bear obligation to respect human rights. Sovereign debts conditions are inherently troubling for developing countries as the measures they require usually demand severe cuts on public and social services.[12] The study is also based on the theory that ESCR are enforceable rights and sovereign debts conditions that violate them can be attributable to both state parties and debt creditors. With respect to states, their ESCRs obligations arise from their domestic and international human rights undertakings towards their population and any financial arrangement they engage in which violates those undertakings can constitute a violation of their obligations.[13]

 

Incidental to the emergence of the modern state is the shift of the obligation to ensure the socio-economic well-being of people from the market and private institutions to the state.[14] The Gambia assumed that obligation when it acceded to various international human rights instruments including, ICESCR, UN Convention on the Rights of the Child (CRC), International Convention on the Elimination of All forms of Racial Discrimination, the African Charter on Human and Peoples’ Rights and the Protocol to the African Charter on the Rights of Women (Maputo Protocol) and the African Charter on the Rights and Welfare of the Child (ACRWC).[15] These instruments guarantee different ESCRs with corresponding legal obligations.

 

ESCRs consist of a bundle of rights that largely engender positive obligations on states. Historically, they have been sacrificed on the altar of ideological contestation, in favour of civil and political rights, with the later trivialised as economic goals and social policies rather than enforceable human rights.[16] Against the recommendation of the UN General Assembly for a single instrument for ESCRs and civil and political rights,[17] two instruments were separately adopted due to ideological differences between states.[18] These differences between the two categories of rights are reflected in the perceived nature of the obligations they engender.

 

Irrespective of the historical differences between ICESCR and the ICCPR however, both instruments are now equipped with complaint mechanisms.[19] The ICESCR imposes obligations on state parties to progressively realise ESCRs using their maximum available resources.[20] In addition to the substantive ESCRs contained in the Universal Declaration of Human Rights (UDHR), the ICESCR which is the primary international instrument on ESCRs at UN level guarantees justiciable ESCRs.[21]

 

The ICESCR demands state parties to move as expeditiously as possible towards the full realization of ESCR, bearing in mind that certain ESCRs cannot be achieved in the short term.[22] As such, states bear an obligation individually and collectively through international assistance to take steps towards the progressive realization of ESCRs. In General Comment 3, the UN CESCR posits that these steps must be ‘deliberate, concrete, and targeted as clearly as possible’.[23] It further emphasised that there are certain ESCRs that impose immediate obligation and are capable of immediate application.[24] Significantly, irrespective of resource availability, states are obligated to ensure a ‘minimum core’ of ESCRs. After a serious neglect of ESCRs globally, the Vienna Declaration and Programme of Action called upon states to adopt holistic and concerted efforts to realise ESCRs at international, regional and domestic levels.[25] At the domestic level this led to a renewed commitment in the enforcement of ESCRs through an unprecedented rise in adjudication.[26]

 

The progressive interpretation of the content of these treaties by the African Commission is gradually concretising ESCRs at the African Regional level. In Free Legal Assistance Group v Zaire[27] it held that the state was in violation of the right to education and health due to financial mismanagement by public officials.[28] However, in this communication, the African Commission failed to define the content of the rights that were violated. Rather, it only regurgitated Article 16 of the African Charter. This communication arguably reflects those moments when the African Commission struggled to articulate the content of ESCRs in Africa. A similar shortcoming manifested in Union Inter africaine des Droits de l’Homme and Others v Angola[29] where the African Commission found Angola in violation of the right to education and work but failed to elaborate on the content of these rights.[30]

 

However, the African Commission advanced its approach to ESCRs in the subsequent cases of the Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (SERAC case)[31] and Purohit and Another v The Gambia (Purohit case).[32]  In the SERAC case, the African Commission did not only elaborate on the content of ESCRs, but went further to read into the African Charter that some rights are not explicitly provided for, such as the right to food and shelter. In the Purohit case, the African Commission gave realistic normative content to ESCRs obligations. It held that due to economic circumstances of African states, the obligations engendered by ESCRs are not immediate.[33] However, states are required to direct their machinery towards making the enjoyment of ESCRs a reality in Africa.

Because of these decisions, the African Commission in 2011 adopted Principles and Guidelines on Economic Social and Cultural Rights in the African Charter on Human and Peoples’ Rights designed to guide states and other stakeholders to monitor the implementation of ESCRs and develop normative standards for ESCRs. These guidelines, in addition to consolidating the jurisprudence of the African Commission also provide guidance on the precise content on all the ESCRs guaranteed in the African Charter, and the nature of state obligation. The above decisions and normative frameworks reflect the progress that has been registered at the regional level in the enforcement and implementation of ESRCs in Africa.  Given their clarity, they provide a normative guide to this article.

 

Global and Regional Responses to the Impacts of Sovereign Debt on ESCRs

 

Due to the escalation of sovereign debts and the challenges they present to Least Developed Countries (LDCs) in the world and particularly in the Sub-Saharan Africa, efforts were garnered at the global, regional and national levels to provide debt relief to HIPC. Some of those efforts attracted some level of scholarly attention from diverse disciplines, including human rights practitioners whom observed the devastating impacts of sovereign debt on ESCRs.  In 2004, the UN Commission on Human Rights adopted Resolution 2004/18 which led to the formulation of guiding principles for states in their sovereign debt contraction.[34] This framework is the only available soft law at the UN level on sovereign debt and ESCRs. Based on this framework in 2015 and pursuant to a UN Human Rights Council Resolution 25/16, a study was commissioned on the effects of sovereign debt on the realisation of human rights and ESCRs in Greece.[35] The study found that the austerity measures adopted by Greece on the demands of international lenders led to the violation of Greek ESCRs obligations as the structural programmes were implemented without prior impact assessment on ESCRs.[36]  

 

While questioning the ad hoc efforts from developed countries in providing debt relief to third world countries, Tan noted that the current approach to debt relief is unsustainable because it depends on the political will of main creditor states.[37] Tan further argued that despite accepting a notional link between sovereign debt and ESCRs, the current sovereign debt framework ‘prioritises debt servicing over and above a state’s duty to provide for social and economic welfare of its citizens.’[38] As an alternative to the current sovereign debt relief regime, Tan advances a notion of debt relief mechanisms anchored on wider global redistributive justice and human rights. She also argues that there should be a departure from conceptualising sovereign indebtedness as an offshoot of poor fiscal policy and bad governance. Rather it should be viewed as indicative of wider structural imbalances in the global economy.[39] Although it is arguable that debt cancellation avails LDC opportunity to do away with loan agreements that constrain their budget, it is difficult to consider it as entitlement or a right based on any established international law.

 

Tan further argues that eradication of poverty is a public good and as such, the global economy should cater for all.[40] Again, it is difficult to anchor poverty as global good given the fact that it is conceptually near impossible to fit it within the two strands of public goods that have emerged in literature. According to Langford, the concept of global goods can be determined based on the positivist or constructivist approach.[41] The positivist approach identifies and recognises those public goods that deal with general global interest. Consequently, the ‘global’ is an important component in determining global goods in the positivist approach.[42] On the other hand, the constructivist approach recognises that what constitutes global goods is a matter of social contestation depending on the choice of the authority that is likely to be influenced by competing actors. Given the concentration of global political and economic power in few actors, it is unlikely that the current power relations at the global level will construct poverty eradication as global goods.

 

Likewise, Rossi examined how a court decision in the United States (US)[43] inspired global efforts to rise against prioritising the property rights of few creditors as more important than the rights of populations in the Global South.[44] In 2005, the Argentine government made unprecedented efforts to reduce its debt burdens by largely restructuring it and settling external creditors such as the IMF. Despite those efforts, $81.8 billion was owed to private creditors as bondholders. A group of private creditors that constituted just 1.6% of the creditors refused to join the debt restructuring and claimed to be paid 100% of their bonds with a return of approximately 1600% more on what they had paid at the time of acquisition of the bonds.[45] In disagreement with the court’s judgment that compelled Argentina to comply with its debt obligations, Rossi argued that this case is an extreme example of a lack of binding treaty that regulates sovereign debt restructuring at the international level.[46] Thus, Rossi argued that states should not be compelled to exhaust all their resources to settle creditors, as such will be at the expense of their ESCRs obligations.

 

However, Rossi’s arguments for an equitable global economic system seem to be premised on the need for the Global South to mobilise and inform the content of a potential treaty on sovereign debt restructuring at the international level. This premise will further polarise the human rights discourse between economic and regional blocks that may shift the debate from how to mitigate the impacts of sovereign debts on ESCRs in LDCs to a prolonged power contestation. Moreover, while legal response maybe very critical in addressing the existing gaps in sovereign debt restructuring; it should be accompanied by institutional reforms that will centralise the ESRCs of citizens in debtor states.

 

Goldmann also wrote about the asymmetry between human rights enforcement and creditor’s claims in sovereign debt workouts.[47] He argued that civil and political rights alone do not guarantee a decent life, even in a liberal democracy. In relation to sovereign debts, Goldmann posits that resources that can be used for social services may be channelled to debt servicing, and states may also be required to adopt structural reforms that adversely affect ESCR.[48] The latter has led to scarcity of drugs in health sectors and the pricing of medical services in Africa.[49] Goldmann further posits that sovereign loan conditionalities can lead to retrogressive measures by states that can compromise their ESCRs obligations. Drawing on the principles of responsibility and accountability under the ICESCR, he argued that although social policy does not fall within the mandate of IMF, in practice however its adjustment programmes had negative consequences on healthcare, labour, housing, sanitation and access to water across the world.[50]

 

The approach employed by Goldmann in calling for the accountability of all actors in sovereign debt contractions and workouts also informs the approach of this research. However, the purpose of his paper is narrower than the objective of this research as the former exclusively focuses on the moral and legal justification for allowing debtor states debt restructuring negotiations particularly when insistence on contractual terms will have adverse impacts on ESCRs. This research focuses on the Gambia to assess the impacts of sovereign debt on the realisation of ESCRs and suggest alternatives to the current sovereign regime that will consider ESCRs.

 

Similarly, Ordu specifically explains the challenges sovereign debt presents to Sub-Saharan African countries in their efforts to ensure the fulfilment of their ESCRs obligations.[51] He explores the conflicting claims of actors in sovereign debt contraction and the trends of the problem in recent times in Africa. He noted that efforts are being made through the African Union (AU) and UN to ease the debt burdens of Sub-Saharan African countries. At the regional level, the Organisation of African Union (OAU) in 1980 adopted the Lagos Plan of Action, which called upon international financial institutions to assist African countries in their development aspirations.[52] Seven years later, the OAU adopted the Declaration on Africa's Indebtedness, which expressed concerns on Africa’s indebtedness, and appealed to creditors for a dialogic process that will lead to short, medium and long term solutions to Africa’s growing debt crisis.[53]

 

Moreover, in 1989, the OAU adopted the Enduring Alleviation of Africa's Debt Problems Resolution as part of efforts to alleviate Africa’s debt burden.[54] In 2005, the OAU efforts culminated in the adoption of the New Partnership for African Development (NEPAD), which was designed to provide a blueprint for Africa’s renewed commitment to link debt relief to poverty reduction in Africa. Based on the above trends, Ordu extrapolates the likely future trends of sovereign debt in Africa.[55] He projects that despite HIPC initiatives by the IMF sovereign debt is likely to increase in LDCs including Africa. He further projects that one should expect severe cuts in essential social programmes such as education, healthcare, water and other pro-poor services. Furthermore, Ordu projects that sovereign debt will continue to stunt Africa’s development growth and engender political instability if efforts are not put to encourage responsible borrowing and lending.[56]

 

Barry posits that it is hard to imagine how states can fulfil their ESCRs obligations if they don’t have the right to borrow in the name of their citizens.[57] He argues that when sovereign debt is high, it limits a state’s ability to guarantee even a minimal adequate standard of living for its citizens. Thus, he observed that Tanzania in 2005 spent nine times on servicing debts than health care, despite 1.6 million citizens living with HIV/AIDS. Given the severity of debt crisis on human rights in general, Barry obliges states to explore durable arrangements that would be worthwhile to regulate sovereign debt and mitigate its perils on human rights.[58]

 

Furthermore, Swaminathan also argued that IMF and World Bank-sponsored macroeconomic programmes are antithetical to ESCRs guaranteed in the ICESCR.[59] However, he posits that it is not easy to link ESCRs violations to such programmes given the ‘sheer vagueness of the relevant statutory language, and it’s very significant qualifications of the inviolability of economic and social rights.’[60] Thus, he contends the increasing control of governments by multilateral financial institutions obviates states’ accountability to their electorates. As a way of safeguarding against unresponsive governments and unaccountable financial institutions, Swaminathan suggests that a clear definition of ESCRs will allow recourse to enforcement and protection of ESCRs.[61]

 

On the issue of accountability, Kutz examines the grounds for the accountability of creditors or investors, particularly where their complicity with states leads to human rights violations.[62] He extends the issue of corporate responsibility from the classical consequentialist position to role responsibility premised on moral obligations of creditors to avoid harm on the one hand, and assume positive obligations in the execution of their business.[63] Follesdal also recognises a negative obligation on creditors to ensure that their actions do not violate the rights of others.[64] He extends the argument further by arguing that creditors form part of the global economic structure, and as such, must assume responsibility for any harm they do to any interest. However, unlike Kutz, Follesdal does not address the issue of whether creditors can bear positive obligations in their transactions. On his part, Mestad is reluctant to extend responsibility of creditors beyond the typical principle of corporate ‘control’ to ‘sphere of influence’.[65] He argues that the term ‘sphere of influence’ is very vague and noted its non-existence in international law.[66]

 

ESCRs Legal and Policy Framework in the Gambia

 

In the domestic legal order, ESCRs are guaranteed either in the constitution or in legislation.[67] Guaranteeing them in a constitution comes with important advantages. Firstly, a constitution can serve as a benchmark upon which the validity of legislation or policy can be tested.[68] Secondly, such a guarantee also dictates the direction of domestic law in general.  However, there are three main ways through which ESCRs may be guaranteed domestically. They may be guaranteed in a bill of rights in a constitution.[69] The implication of this approach is that they are usually available as subjective rights that can be enforced in court. Secondly, they may be included in the constitution as part of National Directives or in a domestic legislation. Their justiciability is contestable in the former because National Directives only provide a guide to judicial interpretation and executive policy making and functions. But their justiciability is beyond doubt when they are incorporated as subjective rights in legislation. These approaches are the major pathways for incorporating international standards into domestic legal systems.

 

The Gambia’s legislative approach to ESCRs cannot easily be explained using any single approach. The 1997 Constitution of the Gambia which is the supreme law of the land[70] contains a bill of rights guaranteeing a limited number of ESCRs. These rights include the right to education, to property, and the right to join trade unions.[71] Thus, those rights that are expressly guaranteed in Chapter 4 of the Constitution can be enforced through a judicial process in terms of article 37. Fundamental rights such as the right to food, shelter, clean water, adequate standard of living only form part of the National Objectives,[72] and as such makes it difficult for individuals and stakeholders to hold the government of the Gambia accountable for ESCRs violations through the judicial process.

 

However, a reading of article 37(8) of the 1997 Constitution of the Gambia[73] suggests that the rights guaranteed in Chapter 4 are not exhaustive, and do not exclude the enjoyment of other rights, particularly those in the National Objectives. This provision provides that the rights specifically mentioned in Chapter 4 of the Constitution should not be regarded as ‘excluding other rights which may be prescribed by an Act of the National Assembly as inherent in a democracy and intended to secure the freedom and dignity of man.’ Therefore, article 37(8) can arguably become a basis from which to seek the enjoyment of those rights contained in the National Objectives, as they enhance human dignity and are inherent in a democracy. The National Objectives are couched in terms of only serving as guiding principles in the interpretation and application of the constitution and policy making process of the government.[74] Though they may not engender enforceable legal obligations, they can be useful as constitutional benchmarks to ensure accountability for ESCRs deprivation arising from government fiscal policies.

 

Moreover, a stronger case for the justiciability of ESCRs contained in the National Objectives in the Gambia can be made if one considers the possible imports of article 211(b), which provides that the:

‘…Executive, the Legislature and all other organs of the State in taking policy decisions, making laws and in the administration of the Gambia, shall according to their respective functions be guided by and observe them with a view to achieving by legislation or otherwise the full realisation of these principles.’[75]

 

Therefore, institutions mandated with the responsibility to either interpret or enforce the constitution are required to be guided by the provisions in the National Objectives as interpretive guides. This provision at minimum imposes a constitutional commitment on the organs of the state to ensure the realisation of the National Objectives consistent with fundamental ESCRs of citizens that maximises their well-being, dignity, and enhances their life chances and opportunities.

 

In addition to the 1997 Constitution of the Gambia, the government of the Gambia adopted policies and legislation relevant in the realisation of ESCRs. These include the Domestic Violence Act and the Sexual Offences Act of 2013, Women’s Act 2010, Trafficking in Persons Act 2007 and its amendment in 2010, the Labour Act 2007 and Children’s Act 2005. Beyond this legislation, the Gambia has also adopted development policies that form an important component of the legal and policy framework for the implementation of ESCRs.[76] Such policies rather consist of a variety of soft law rather than hard law sources that are useful in providing the harmonisation of government policies with ESCRs obligations.

 

Drawing on the above, the National Objectives that form part of the 1997 Constitution of the Gambia and other provisions contained in Chapter 4 reflect a commitment to govern the Gambia in accordance with the values of social justice. Therefore, the Constitution lays the foundation for a democratic dispensation, where the life opportunity of every Gambian is guaranteed. To take ESCRs beyond the syndrome of mere ‘paper promises’, courts and other democratic institutions must endeavour to facilitate the realization of these rights in a way that is consistent with human dignity, particularly at a time when the government of the Gambia is increasingly developing a penchant for debt contraction whose servicing are antithetical to its ESCRs obligations. Thus, the next section inspects how debt burden and loan servicing is diverting critical resources away from fulfilling the government’s ESCRs obligations in the Gambia to loan servicing, and the consequential imposition of these austerity measures.

 

The Gambia’s Debt Burden and its Perils on the Realisation of ESCR

 

What is required of the Gambia under international human rights law is to make efforts for the progressive realisation of ESCRs. This requires the Gambia to move as expeditiously as possible towards the full realization of ESCRs, bearing in mind that certain ESCRs cannot be achieved in the short term.[77] In General Comment 3, the UN CESCR posits that these steps must be deliberate, concrete, and targeted as clearly as possible.[78] It further emphasised that there are certain ESCRs that impose immediate obligations that are capable of immediate application.[79] Thus, irrespective of resource availability, states are obligated to ensure a ‘minimum core’ of ESCRs. The recent rise of loan contraction in the country to deal with the economy sacrifices essential social services in favour of loan servicing.

 

In 2010, through its Poverty Reduction Strategy Paper (PRSP), the government of the Gambia made a commitment to invest 25% of its budget into poverty reduction through investment in social services to enhance human development.[80] However, it failed to meet that target due to the high cost of debt servicing that currently consumes over 30% of the annual budget. In the most recent budget estimates, over Gambian Dalasi 4.2 Billion is earmarked for debt servicing which is four times more than the health care expenditure and three times more than the allocated amount for education, pensions and social security.[81] This translates into a deficit in socio-economic investment in the country. For instance, the allocated GMD 955,171,920 to the health sector is twice less than the 15% of Gross Domestic Product threshold recognised in the Abuja Declaration of 2001, where African heads of states made commitments to adequately finance health care services in their countries.[82] In 2013, the National Health Account in the Gambia showed that the health expenditure of the government only stood at 5.6% of the GDP, and 46.7% of that was donor funded whilst only 28% came from the government, which left households with the need to finance 21.21% of the national healthcare services.[83]

 

Beyond squeezing resources from the health sector, sovereign debt is also undermining the state’s ability to realise the right to development in the Gambia. The right to development is an inalienable right, which all persons are entitled to take participate in to enjoy their ESCRs and development with political aspirations and unfettered dignity.[84] The right to development is understood as a collective and individual right that can be asserted by an individual.[85] The content of the right to development is understood as engendering both positive and negative obligations. In the case of Centre for Minority rights (Kenya) & another v Kenya (Endorois case),[86] the African Commission held that article 22 of the African Charter places an obligation on the state to improve the well-being of all the people and create conditions favourable to people’s development. As such, the state is required to support the creation of an environment in which people can develop their full potential and enhance their life chances.

 

Thus, in line with article 1 of the International Covenant on Civil and Political Rights (ICCPR), at the bare-minimum the state should not deprive people of their means of sustenance by investing same in servicing debts that hardly benefit them. The African Commission in SERAC case held that the state should respect and refrain from negative interference with enjoyment of human rights.[87] The Edorois case emphasises that the pursuit of development should be participatory to allow people to consent to development plan that can impact their lives.

 

Moreover, in further defining the right to development, Amartya Sen advanced a broad understanding of the right to development which goes beyond mere increase in the material well-being of people to include the enlargement of freedoms enjoyed by people.[88] He therefore defined the right to development as a collection of claims that includes healthcare, education, food and all civil and political rights. Thus, he argues that development includes removing barriers to the realisation of the basics for human nourishment.[89]

 

Drawing from the above, the servicing of sovereign debts presents an obstacle to human development, as it puts unnecessary barriers to the realisation of basic ESCRs in the Gambia. Moreover, the right to development is violated if one considers the fact that the right entails both substantive and procedural aspects. The latter requires people to participate in development plans that concern them. In sovereign debt contractions and servicing in the Gambia, the poor who remain alienated from the processes bear the consequential effects of debt burdens. As the government realigns its economy to service debts, much of the pro-poor policies shrink. Different actors are involved in sovereign debt contraction and management. In the Gambia, due to the absence of transparency concerning debt contraction, it is difficult to identify the different actors in their different formations for accountability.

 

Ensuring Accountability

 

Given the impacts of sovereign debts and loan conditionalities on the state’s ability to realise the ESCRs of Gambians through adequate financing, it is imperative to explore possibilities for state accountability and responsibility for increasing the vulnerability of citizens arising from measures align to sovereign debts and decision making. This is based on the logic that political economy as espoused by Margaret Legum who argued that ‘Economics is not about the logic of a system: it is about people and how they are being served by whatever system we are using.’[90] Thus, the economy of a country supposedly designed for people must yield to their needs and aspirations, and in the event economic resuscitation deprives ESCRs, the state in one way or the other must be held accountable through domestic and international human rights mechanisms. That extends to corporations and institutions involved in sovereign debt contractions and management with the state as they dictate the fiscal and macroeconomic policy of the debtor country.

 

Paragraph 47 of the UN Monterrey Consensus of the International Conference on Financing for Development provides that ‘Debtors and creditors must share the responsibility for preventing and resolving unsustainable debt situations.’[91] Therefore, it can be argued that seeking responsibility must be done through the diffusion of accountability to the state as the primary obligor, and institutions and corporations as secondary obligors. As such, all actors in sovereign debts must assume shared responsibility consistent with their specific ESCRs obligations.

 

The government of the Gambia is bound by its international obligations arising from the various treaties that guarantee the ESCRs of its citizens in line with democratic values. The government – as the primary obligor in international human rights law – bears the obligation to respect, protect and fulfil ESCRs by using its available resources through the direct provision of basic needs.[92] This obligation includes providing and facilitating the enjoyment of the minimum core of each of the rights in the IESCR.[93] For a state to be absolved of liability, it must indicate that it has used the maximum of its available resources to discharge its minimum core obligations. The CESCR held that the mere inadequacy of resources does not relieve a state to ensure the widest possible enjoyment of the rights under any prevailing circumstances. As such, the fact that the Gambia has a high debt burden does not absolve it of its ESCRs obligations to create the environment that will facilitate the widest enjoyment of ESCRs.[94]

 

With regards to the appropriate forums, much reliance can be made on the available domestic, sub-regional, regional and international mechanisms to bring individual and class actions against the government of the Gambia for violations of ESCR arising from its positive actions in debt management and restructuring. Thus, the starting forum would be the High Court of the Gambia which has original and exclusive jurisdiction to hear cases of alleged human rights violations in terms of article 37 of the 1997 Constitution of the Gambia.[95] Relying on article 37, Gambian courts have in a plethora of decisions found the government in violation of civil and political rights enshrined in chapter four of the 1997 Constitution of the Gambia.[96] However, there are no known cases on ESCRs. Moreover, the recent establishment of the Gambia Human Rights Commission also provides a forum to vindicate ESCRs violations that may arise from sovereign debt contraction and management.[97] In terms of section 19 of the National Human Rights Commission Bill 2017, the Commission will have the power to establish thematic committees that will be dealing with various thematic human rights concerns. Thus, sovereign debts can be anchored as part of its thematic focus to monitor their impacts on ESCR in the Gambia to engage the relevant stakeholders.

 

The jurisdiction of National Human Rights Commissions to ensure the protection, promotion and realization of ESCRs is an inherent mandate that stems from their general human rights mandate. General Comment 10[98] of the CESCR provides that National Human Rights Commissions have a duty to ensure the promotion, protection and fulfilment of all human rights.[99] Their functions may include monitoring human rights situations, reviewing domestic legislation, reporting to international bodies, handling individual and collective complaints. Thus, the Commission presents a complementary and viable avenue for the implementation of ESCRs in the Gambia because it enjoys a comparative advantage in terms of its ability to pursue a variety of strategies for the implementation of ESCR beyond a limited, court-centric, litigious approach in the Gambia. Therefore, proactive engagement of the Commission will not only give visibility to ESCR violations arising from sovereign debt, but also trigger legal and policy reforms in the Gambia that can anchor ESCR in the current domestic human rights architecture, and strengthen accountability for ESCRs violations.

 

At the sub-regional level, the Economic Community of West African States’ Community Court of Justice (ECOWAS-CCJ) also presents an important avenue for ensuring accountability and responsibility of the government of the Gambia for violations of ESCR arising from sovereign debts. The ECOWAS-CCJ in the matter of Registered Trustees of the Socio-Economic Rights and Accountability Project v Nigeria determined that it had jurisdiction to determine cases based on the African Charter on a complaint related to the right to education.[100] The ECOWAS-CCJ also relied on the doctrine of actio popularis as a mechanism for individuals and citizens to vindicate public rights in court whenever they are breached to overcome barriers to access justice.[101] Given the above decision, it is submitted that there are indications that the ECOWAS-CCJ provides a viable avenue to seek the accountability of the government of the Gambia for ESCRs deprivation align to sovereign debts.

 

Moreover, the Gambia being a party to the African Charter and other regional human rights instruments is subject to the African regional mechanisms for human rights and governance. The African Commission with its protective and promotional mandate has been instrumental in the enforcement and promotion of ESCRs in Africa, particularly at a time when the enjoyment of ESCRs rights at the domestic level in many African states is reduced to mere policy aspirations. In terms of its protective mandate, the commission found states in violation of ESCRs related to the right to health, food, shelter and development.[102] The African Commission also exercises promotional mandates that include receiving states’ periodic reports under the African and the Maputo Protocol.[103]

 

The aim of state reporting is to allow the African Commission to examine the measures adopted by states to ensure the fulfilment of their human rights obligations. The process also allows states to conduct self-assessment and introspection to identify their achievements and failures under the African Charter and the Maputo Protocol.[104] Individuals and relevant stakeholders can utilise these mechanisms to hold the government accountable and provoke a dialogue on the perils of sovereign debts on ESCRs, relying on the African Charter as a normative basis. The utility of the state reporting process will depend on the ability of the African Commission to go beyond the acceptance of mere listing of legislations and policies[105] adopted by states to examine how their sovereign debts arrangements lead to retrogressive social policies and measures, particularly when critical ESCRs are underfunded due to the diversion of available resources to debt servicing.

 

Complementing the regional mechanisms, the UN General Assembly adopted the Optional Protocol to the ICESCR (OP-ICESCR).[106] This protocol established a complaint mechanism for individuals and groups to lodge complaints with the CESCR on the condition of the exhaustion of local remedies.  The adoption of this protocol was symbolic at the global level as it defied the perception and marginalisation of ESCRs as mere policy aspirations, and provided access to justice for victims of ESCRs violations. In addition to a complaint procedure, the protocol also provides for inquiries procedure in cases of systemic and gross violations of ESCRs.[107] However, the Gambia is not yet a signatory to this protocol. Therefore, it is not subject to the complaint mechanism. Nonetheless, at a time when there is commitment to uphold human rights in the Gambia, efforts should be made to sign and ratify the optional protocol to increase the latitude of accountability at the global level.

 

Conclusion

 

At this juncture, an important season lies ahead for the Gambia. It is a season to reverse the trend of excessive and reckless borrowing, and invest more into human development and ESCR. Prudent borrowing and spending can contribute to human development in the Gambia. But excessive borrowing and its servicing can also be antithetical to the ability of the country to execute its ESCR obligations, as critical resources can be diverted to loan servicing. The current debt crisis in the country presents a serious challenge to the government’s fiscal policy. To address that crisis and its underlying causes, the state must consider its ESCR obligations, bearing in mind that one of the core functions of a government is the provision of basic social services that can enhance sustainable human development in the absence of which the poor and the vulnerable will be subordinated. The impacts of sovereign debts on the enjoyment of the right to education, health, social security, food, employment and shelter remain palpable as they are seriously underfunded. The enjoyment of ESCR requires adequate funding. Side-lining ESCRs in debt contraction and restructuring degenerate their relevance in the modern state that should ensure Gambian citizens access to basic welfare services that will enhance their human dignity.

 

 

 

 

 

 

References

 

Books

Mbazira, C (2009) Litigating Socio-economic Rights in South Africa: A choice between corrective and distributive justice Pretoria: Pretoria University Law Press.

Sen, A (1999) Development as Freedom Oxford Publishing Press. 

Ssengyonjo M, (2009) Economic, Social and Cultural Rights in International Law Portland: Hart Publishing.

Viljoen, F (2013) International Human Rights Law in Africa Oxford: Oxford University Press.

 

Book Chapters

(2009) Social Jurisprudence: Emerging Trends in International and Comparative Law New York: Cambridge University Press.

Brand A, ‘Introduction to socio-economic rights in the South African Constitution’ in D Brand & CH Heyns (eds) (2005) Socio-economic Rights in South Africa Pretoria: Pretoria University Law Press.

Dowell, M ‘The Sovereign Bond Markets and Socio-Economic Rights: Understanding the Challenge of Austerity’ in M Dowell et al Economic, Social, and Cultural Rights in International Law: Contemporary Issues and Challenges (2014) 51.

Follesdal, A ‘Human Rights Investment Filters: A Defence’ in G Nystuen et al Human Rights, Corporate Complicity and Disinvestmen (2011) 132.

International Covenant on Economic, Social and Cultural Rights: A Commentary Pretoria:

K Rittich ‘Social Rights and Social Policy: Transformations on the International Landscape’ in D Barak Erez and AM Gross (eds), Exploring Social Rights: Between Theory and Practice (2007), 107.

Langford, M ‘Substantive Obligation’ in B Porter et al (eds) (2016) The Protocol to the

Langford, M ‘The Justiciability of Social Rights: From Practice to Theory’ M Langford (ed)

M Goldmann ‘Human Rights and Sovereign Debt Workouts’ in JP Bohoslavsky and JL Cernic (eds) Making Sovereign Financing and Human Rights Work (2014) 150.

Mestad, O ‘Attribution of Responsibility to listed Companies’ in G Nystuen et al Human

Pretoria University Law Press.

Rights,   Corporate Complicity and Disinvestment (2011) 79.

Rittich, K ‘Social Rights and Social Policy: Transformations on the International Landscape’ in D Barak-Erez and AM Gross (eds), (2007) Exploring Social Rights: Between Theory and Practice Oxford and Portland: Oxford and Portland: Hart Publishing Ltd.

 

Journal Articles

Alston, P & Quinn, G 'The Nature and Scope of States Parties' Obligations under the International

Alston, P ‘Out of the abyss: The Challenges Confronting the New United Nations Committee on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 352-353.

Barry, C ‘Sovereign Debt, Human Rights, and Policy Conditionality’ (2011) The Journal of Political Philosophy.

Covenant on Economic, Social and Cultural Rights' (1987) 92 Human Rights Quarterly 156.

Hunt, P ‘Reclaiming Social Rights: International and Comparative Perspectives’ (1996) 21 Human Rights Quarterly 53-54.

Kampel, D ‘Sovereign debt restructuring and the right to development: Challenges from an incomplete framework’ (2017) 1 Global Campus Human Rights Journal 1-16.

Kutz, C ‘Responsibility Beyond Law’ in G Nystuen et al Human Rights, Corporate Complicity and Disinvestment (2011) 64.

Liebenberg, S ‘Participatory Approaches to Socio-Economic Rights Adjudication: Tentative Lessons from South African Evictions Law’ (2014) 32 Human Rights Quarterly 312-330.

Mbazira, C ‘A path to realising economic, social and cultural rights in Africa? A critique of the New Partnership for Africa's Development’ (2004) 1 AHRLJ 34-52.

Michalowski, S ‘Sovereign Debt and Social Rights–Legal Reflections on a Difficult Relationship’ (2008) 8 Human Rights Law Review 35.

Ordu, R ‘Debt and the Realization of Economic and Social Rights in Sub-Saharan Africa: Beyond Debt Relief to Solutions in the Common Interest’ (2008) 3 Intercultural Human Rights Law Review 229.

Rossi, J ‘Sovereign Debt Restructuring, National Development and Human Rights’ (2016) 13 SUR International Journal on Human Rights 185 – 196.

Swaminathan, R ‘Regulating Development: Structural Adjustment and the Case for National Enforcement of Economic and Social Rights’ (1998) 37 Columbia Journal of Transnational Law 161.

Tan, C ‘Life, Debt and Human Rights: Contextualising the International Regime for Sovereign Debt Relief’ Legal Studies Research Paper No. 2011-09.

Viljoen, F ‘National Legislation as a Source of Justiciable Socio-economic Rights’ (2005) 6 ESR Review 7.

Young, KG ‘The Minimum Core of Economic and Social Rights: A Concept in Search of Content’ (2008) 33 Yale Journal of International Law 113-176.

 

International Instruments and Documents

Committee on Economic, Social and Cultural Rights, General Comment No. 10: The role of

Committee on Economic, Social and Cultural Rights, General Comment No. 3, The Nature of

December 1998, E/C.12/1998/25.

ECOSOC Resolution 2/9 of 21 June 1946.

General Assembly Resolution A/RES/63/117, 10 December 2008.

General Comment No. 10: The role of national human rights institutions in the protection of economic, social and cultural rights, December 1998, Committee on Economic, Social and Cultural Rights E/C.12/1998/25.

International Convention on the Elimination of All forms of Racial Discrimination African Charter on the Rights and Welfare of the Child (ACRWC).

International Covenant on Civil and Political Rights (ICCPR), UNGA 2200A (XXI) 16 December 1966.

International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993

Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 1997.

national human rights institutions in the protection of economic, social and cultural rights,

Optional Protocol to the ICESCR GA Res. 63/117, UN Doc. A/Res/63/117 (2008).

Rights 25 June 1993 (A/CONF.157/23.

States Parties Obligations UN Doc E/1991/23 1 January 1991.

The Declaration on the Right to Development adopted by the UN General Assembly Resolution 41/128 1986.

The Limburg Principles on the Implementation of the International Covenant On Economic, Social and Cultural Rights UN doc. E/CN.4/1987/17.

U.N.T.S. 3.

UN General Assembly Guiding principles on foreign debt and human rights A/HRC/20/23 April  2011.

UN General Assembly Resolution 48/134 on 20 December 1993.

UN Monterrey Consensus of the International Conference on Financing for Development, Monterrey Mexico 2002.

Universal Declaration of Human Rights (UDHR), G.A. Res. 217A, U.N. Doc A/810 (10 December 1968.

Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights 25 June 1993 (A/CONF.157/23.

 

Regional and Sub-Regional Instruments

African Charter on Human and Peoples Rights Adopted in Nairobi June 27, 1981 Entered into

African Charter on the Rights and Welfare of the Child OAU Doc. CAB/LEG/24.9/49 (1990).

African Summit on HIV/AIDs, Tuberculosis and other related Infectious Diseases, Abuja Nigeria OAU/SPS/ABUJA/3, 2001.

Common Africa Position (Cap) on the Post 2015 Development Agenda African Union March

Force October 21, 1986.

Human and Peoples’ Rights (24 October 2011). Available at <www.achpr.org> (Accessed on 11 October 2014).

Lagos Plan of Action for the Economic Development of Africa, 1980-2000.

Principles and Guidelines on Economic Social and Cultural Rights in the African Charter on

Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol) AHG/Res.240 (XXXI), adopted 17 November 2003, entered into force 25 November 2005.

 

Reports/Papers

CESCR, The Nature of States Parties Obligations UN Doc E/1991/23 1 January 1991,para. 9 General Comment No. 3.

Concluding observations on the initial report of the Gambia Adopted by the Committee at its fifty fourth session (23 February–6 March 2015).

Human Rights Council Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights on his mission to Greece, 2016.

M Lagum It Doesn't Have to be Like this: Global Economics: a New Way Forward (2001) at 17. 

Report of the independent expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights A/HRC/11/10 3 April 2009. 

The Gambia: Poverty Reduction Strategy Paper IMF Country Report No. 07/308 September 2007.

Trading Economics: Gambia GDP Annual Growth Rate 1968-2017 available at https://tradingeconomics.com/gambia/gdp-growth-annual (accessed 19 December 2017).

UNDP ‘Human Development Report’ 2016.

WHO Gambia I Biennial Report I 2014-2015.

 

Dissertation

Bah, S ''The Role of Uganda Human Rights Commission in The Implementation of Economic, Social and Cultural Rights: Opportunities and Lessons’’ Unpublished LLM Dissertation, University of Pretoria (2017).

 

National Legislation and Policy

Appropriation Bill 2018.

National Education Policy 2004–2015 and the National Development Plan 2017-2020.

National Human Rights Commission Bill, 2017.           

National Nutrition Policy 2010–2020.

National Plan of Action for Accelerated Abandonment of Female Genital Mutilation 2013-2017.

The Constitution of the Gambia, 1997.

 

Case Law

Centre for Minority rights (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (2009) AHRLR 75 (ACHPR 2009).

Denton v The Director-General, National Intelligence Agency and Others (2006) AHRLR 241 (GaHC 2006). 

Jammeh v Attorney-General (2002) AHRLR 72 (GaSC 2001)

Purohit & another v The Gambia (2003) AHRLR 96 (ACHPR 2003).

Registered Trustees of the Socio-Economic Rights and Accountability Project v Nigeria Suit No. ECW/CC/APP/0808 27 October 2009.

Republic of Argentina v. NML Capital, Ltd., 573 U.S. (2014).

Sabally v Inspector General of Police and Others (2002) AHRLR 87 (GaSC 2001).

Social and Economic Rights Action Center v Nigeria (2001) AHRLR 60 (ACHPR 2001).

 

Internet Sources

Ratification Table, ‘African Charter on Human and Peoples’ Rights’ available at

<http://www.achpr.org/instruments/achpr/ratification/> (accessed 10 October 2017).

Ratification Table, ‘Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa’ available at (http://www.achpr.org/instruments/womenprotocol/ ratification/) (accessed 10 October 2017).

‘United Nation’s Treaty Collections, ICESCR’ available at-

(https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-

3&chapter=4&clang=_en) (accessed 10 October 2017).

 



[1] Trading Economics: Gambia GDP Annual Growth Rate 1968-2017 available at                  https://tradingeconomics.com/gambia/gdp-growth-annual (accessed 19 December 2017).

[2] Concluding observations on the initial report of the Gambia Adopted by the Committee at its fifty  fourth session (23 February–6 March 2015).

[3] Appropriation Bill 2018.

[4] General Assembly Resolution A/RES/63/117, 10 December 2008.

[5] C Mbazira ‘A path to realising economic, social and cultural rights in Africa? A critique of the New                  Partnership for Africa's Development’ (2004) 1 AHRLJ 34-52.

[6] S Liebenberg ‘Participatory Approaches to Socio-Economic Rights Adjudication: Tentative               Lessons from South African Evictions Law’ (2014) 32 Human Rights Quarterly 312-330.

[7] The current sovereign debt of the Gambia stands at 120% to the GDP.

[8] UNDP ‘Human Development Report’ 2016.

[9] D Bradlow ‘Debt, Development, and Human Rights: Lessons from South Africa’ (1991) 12                  Michigan Journal of International Law 647.

[10] N Villaroman, A Fate Worse than Debt: An Alternative View of the Right to Development and its Relevance in the External Debt Problem of Developing Countries, (November 10, 2010). Available at SSRN: https://ssrn.com/abstract=1895449 or http://dx.doi.org/10.2139/ssrn.1895449

[11] A Iyola ‘External debt and economic growth in sub-Saharan African countries: An econometric study’ AERC Research Paper 90 African Economic Research Consortium, Nairobi March 1999.

[12] S Michalowski ‘Sovereign Debt and Social Rights–Legal Reflections on a Difficult Relationship’ (2008)8 Human Rights Law Review 35.

[13] M Dowell ‘The Sovereign Bond Markets and Socio-Economic Rights: Understanding the Challenge of Austerity’ in M Dowell et al Economic, Social, and Cultural Rights in International Law: Contemporary Issues and Challenges (2014) 51.

[14] K Rittich ‘Social Rights and Social Policy: Transformations on the International Landscape’ in D Barak Erez and AM Gross (eds), Exploring Social Rights: Between Theory and Practice (2007), 107.

 [15]Ratification Status for Gambia see: http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=64&Lang=EN.

[16] P Alston and G Quinn, 'The Nature and Scope of States Parties' Obligations under the International                  Covenant on Economic, Social and Cultural Rights' (1987) 92 Human Rights Quarterly 156.

[17] International Covenant on Civil and Political Rights (ICCPR), UNGA 2200A (XXI) 16 December 1966 and came into force in 1976.

[18] P Hunt ‘Reclaiming Social Rights: International and Comparative Perspectives’ (1996) 21 Human   Rights                  Quarterly 53-54. Hunt argues that the differences constructed between ESCRs and civil rights are just manifestation of ideological differences than differences between the rights.

[19] The Optional Protocol to the ICESCR into force in 2013 and it permits groups and individuals to submit complaints to the UN CESCR. It provides for Inter State Communication, Individual Complaint Procedure and Inquiry Procedure.

[20] Art 2(1) of ICESCR.

[21] The ICESCR guarantees the rights to Self-determination (Art.1); Right to work (Art.6); Right to                  favourable conditions of work (Art.7); Right to join trade Union (Article 8); Right to Social                  Security and Insurance (Art.9); Right to Family Assistance; Right to Adequate Standard of Living                  (Art.11); Right to Health (Art.12); Right to Education (Art.13); Compulsory Primary Education (Art.14)      and Right to Cultural Rights (Art. 15).

[22] CESCR, The Nature of States Parties Obligations UN Doc E/1991/23 1 January 1991para. 9 General Comment No. 3.

[23] General Comment No.3 (n 22) para 9.

[24] General Comment No. 3 (n 22 above) para 5. These provisions are: articles 3, 7 (a) (i), 8, 10 (3),13 (2) (a),                  (3) and (4) and 15 (3).

[25] Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights                  25 June 1993 (A/CONF.157/23.

[26] S Liebenberg ‘Participatory Approaches to Socio-Economic Rights Adjudication: Tentative              Lessons from South African Evictions Law’ (2014) 32 Human Rights Quarterly 312.

[27] (2000) AHRLR 74 (ACHPR 1995).

[28] (2000) AHRLR 74 (ACHPR 1995) para. 47 and 48.

[29] (2000) AHRLR 18 (ACHPR 1997).

[30] (2000) AHRLR 18 (ACHPR 1997) para 17.

[31] (AHRLR 60 (ACHPR 2001)

[32] (2003) AHRLR 96 (ACHPR 2003).

[33] (2003) AHRLR 96 (ACHPR 2003) para. 42.

[34] UN General Assembly Guiding principles on foreign debt and human rights A/HRC/20/23 April 2011.

[35] Human Rights Council Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights on his mission to Greece, 2016.

[36] UN General Assembly (n 34 above)

[37] C Tan ‘Life, Debt and Human Rights: Contextualising the International Regime for Sovereign Debt  Relief’ Legal Studies Research Paper No. 2011-09.

[38] Tan (n 37 above) p 3.

[39] Tan (n 37 above) p7. 

[40] Tan (n 37 above) p4.

[41] M Langford ‘Keeping Up with the Fashion: Human Rights and Global Public Goods’ (2009) 16 International Journal on Minority and Group Rights 165–179.

[42] Langford (n 41 above) 169.

[43] Republic of Argentina v. NML Capital, Ltd., 573 U.S. (2014).

[44] J Rossi ‘Sovereign Debt Restructuring, National Development and Human Rights’ (2016)                 13 SUR International Journal on Human Rights 185 – 196.

[45] ‘Tough Judge Thomas Griesa weighs Argentina’s fate’ Financial Times 31 July 2014.

[46] Rossi (n 44 above) 189.

[47] M Goldmann ‘Human Rights and Sovereign Debt Workouts’ in JP Bohoslavsky and JL Cernic (eds)  Making Sovereign Financing and Human Rights Work (2014) 150.

[48] M Goldmann ‘Human Rights and Sovereign Debt Workouts’ in JP Bohoslavsky and JL Cernic (n 47  above).

[49] M Goldmann ‘Human Rights and Sovereign Debt Workouts’ in JP Bohoslavsky and JL Cernic (n 47  above) at p.6.

[50] M Goldmann ‘Human Rights and Sovereign Debt Workouts’ in JP Bohoslavsky and JL Cernic (n 47  above) at p.6.

[51] R Ordu ‘Debt and the Realization of Economic and Social Rights in Sub-Saharan Africa: Beyond Debt Relief to Solutions in the Common Interest’ (2008) 3 Intercultural Human Rights Law Review 229.

[52] Lagos Plan of Action for the Economic Development of Africa, 1980-2000.

[53] Ordu (n 51 above) p 269.

[54] OAU AHG/Res. 185. (XXV) (July 24-26, 1989)

[55] Ordu (n 51 above) p 254.

[56] Ordu (n 51 above) p 294.

[57] C Barry ‘Sovereign Debt, Human Rights, and Policy Conditionality’ (2011) The Journal of                 Political Philosophy.

[58] Barry (n 57 above) p 14.

[59] R Swaminathan ‘Regulating Development: Structural Adjustment and the Case for National Enforcement of Economic and Social Rights’ (1998) 37 Columbia Journal of Transnational Law 161.

[60] Swaminathan (n 59 above) p 163.

[61] Swaminathan (n 59 above) p 168.

[62] C Kutz ‘Responsibility Beyond Law’ in G Nystuen et al Human Rights, Corporate Complicity and Disinvestment (2011) 64.

[63] C Kutz ‘Responsibility Beyond Law’ in G Nystuen et al Human Rights, Corporate Complicity and Disinvestment (2011) 69.

 [64] A Follesdal ‘Human Rights Investment Filters: A Defence’ in G Nystuen et al Human Rights, Corporate Complicity and Disinvestment (2011) 132.

[65] O Mestad ‘Attribution of Responsibility to listed Companies’ in G Nystuen et al Human Rights, Corporate Complicity and Disinvestment (2011) 79.

[66] O Mestad ‘Attribution of Responsibility to listed Companies’ in G Nystuen et al Human Rights, Corporate Complicity and Disinvestment (2011) 83.

[67] F Viljoen International Human Rights Law in Africa (2013) at 546.

[68] F Viljoen ‘National Legislation as a Source of Justiciable Socio-economic Rights’ (2005) 6 ESR Review 7.

[69] F Viljoen (n 68 above) p 6.

[70] Article 4 of the 1997 Constitution of the Gambia.

[71] Articles 22, 25(e) and 30 of the 1997 Constitution of the Gambia respectively.              

[72] Chapter XX, Directive Principles of State Policy: Social and Economic Objectives 1997 Constitution of the Gambia.

[73] Article 37(8) of the 1997 Constitution of the Gambia reads: ‘The rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded excluding other rights which may be prescribed by an Act of the National Assembly as inherent in a democracy and intended to secure the freedom and dignity of man.’

[74]Article 211(a)(b) of the 1997 Constitution of the Gambia.

[75] Article 211(a) of the 1997 Constitution of the Gambia.

[76] National Plan of Action for Accelerated Abandonment of Female Genital Mutilation 2013 2017; National Nutrition Policy 2010–2020 and the establishment of the National Nutrition Agency; National                  Education Policy 2004–2015 and the National Development Plan 2017-2020.

[77] CESCR, The Nature of States Parties Obligations UN Doc E/1991/23 1 January 1991,para. 9 General Comment No. 3.

[78] General Comment No.3 (n 22 above) para 9.

[79] General Comment No. 3 (n 18 above) para 5. These provisions are: articles 3, 7 (a) (i), 8, 10 (3),13 (2) (a), (3) and (4) and 15 (3).

[80] The Gambia: Poverty Reduction Strategy Paper IMF Country Report No. 07/308 September 2007.

[81] Appropriation Bill, 2018.

[82] African Summit on HIV/AIDs, Tuberculosis and other related Infectious Diseases, Abuja Nigeria OAU/SPS/ABUJA/3, 2001.

[83] WHO Gambia I Biennial Report I 2014-2015.

[84] The Declaration on the Right to Development adopted by the UN General Assembly Resolution 41/128 1986.

[85] D Kampel ‘Sovereign debt restructuring and the right to development: Challenges from an incomplete framework’ (2017) 1 Global Campus Human Rights Journal 1-16.

[86] (2001) AHRLR 60 (ACHPR 2001) para 44.

[87] (AHRLR 60 (ACHPR 2001). 

[88] A Sen Development as Freedom (1999).

[89] Sen (n 87 above) p 15.

[90] M Lagum It Doesn't Have to be Like this: Global Economics: a New Way Forward (2001) at 17.

[91] UN Monterrey Consensus of the International Conference on Financing for Development, Monterrey                  Mexico 2002.

[92] Report of the independent expert on the effects of foreign debt and other related international financial                  obligations of States on the full enjoyment of all human rights, particularly economic, social and                  cultural rights A/HRC/11/10 3 April 2009. 

[93] General Comment No.3 (n 22) para 9.

[94] General Comment No.3 (n 22) para 9.

[95] Article 37 of the 1997 reads ‘ If any person alleges that any of the provisions of section 18 to 33 or                  section 36 (5) of this Chapter has provisions been, is being or is likely to be contravened in relation to               himself      or herself by any person he or she may apply to the High Court for redress.’

[96] See Jammeh v Attorney-General (2002) AHRLR 72 (GaSC 2001); Sabally v Inspector General of Police and Others (2002) AHRLR 87 (GaSC 2001); Denton v The Director-General, National                Intelligence Agency and Others (2006) AHRLR 241 (GaHC 2006). 

[97] National Human Rights Commission Bill, 2017.

[98] General Comment No. 10: The role of national human rights institutions in the protection of                  economic, social and cultural rights, December 1998, Committee on Economic, Social and                  Cultural Rights E/C.12/1998/25.

[99] UN Committee on Economic, Social and Cultural Rights: The Role of Independent NHRIs in the                  Protection of and Promotion of Rights of the Child (15/11/2002) CRC/GC/2002/2.

[100] Suit No. ECW/CC/APP/0808 27 October 2009.

[101] Rul. No: ECW/CCJ/APP/07/10 para 61.

[102] (2000) AHRLR 74 (ACHPR 1995), (2000) AHRLR 18 (ACHPR 1997), (AHRLR 60 (ACHPR 2001)(2003) AHRLR 96 (ACHPR 2003) (n 21,22, 23 and 24 above).

[103] Viljoen (n 68) p 349.

[104] Viljoen (n 68) p 350.

[105] Viljoen (n 68) p 353.

[106] The Optional Protocol to the ICESCR GA Res 63/117, UNGAOR, 63D, Supp No 49 UN Doc A/RES/63/117 (2008).

[107] M Langford ‘Substantive Obligation’ in B Porter et al The Protocol to the International Covenant on                  Economic, Social and Cultural Rights: A Commentary (2016) 1-15.