Economic, Social and Cultural Rights in the Constitutions of Transitional Countries: Examples for Tunisia

Economic, Social and Cultural Rights in the Constitutions of
Transitional Countries: Examples for Tunisia

Joseph Schechla[1]

Tunisia is well on its way to debating its new constitution through the
postrevolutionary Constituent Assembly. However, ideology, identity politics and
interpretations of history still intervene to affect material priorities,
accountability issues, victims’ rights, questions of participatory decision
making, and national reconciliation. Nonetheless, the rewriting of the
constitution potentially could provide all Tunisians a chance at real reform,
to exercise full citizenship effectively and put in place a vanguard to prevent
future abuses of power. This occasion also provides the related opportunity for
citizens to re-envision their state, giving it citizenship greater meaning and
citizens a true stake in its conception.

Many serious constitutional proposals relate to economic, social and
cultural rights (ESCRs) of citizens and aid in statecraft: the art of leading
and managing the state as comprised of (1) the land, (2) its peoples and (3)
its institutions, including government. Enshrining human rights to regulate public
and private property, including housing, water and land in the constitution, is
vital for the long-term success of statecraft.

ESCRs in the constitution ensure that the constitution forms a
cornerstone of a stable and sustainable and democracy in the state. Enshrining
ESCRs ensures that the state respects, protects and fulfills the indivisible
bundle of rights of all people in the country with corresponding state
obligations that, in practical terms, apply to all law and bind the government—the
legislature, the executive, the judiciary—and all organs of state. In ethical
terms, ESCRs are indispensable to affirming the values of human dignity,
equality and freedom.

Examples from the new generation of constitutions in transitional states
are instructive as to how to enshrine state obligations to respect, protect and
fulfill ESCRs, as explicit, for example, in the South African Constitution’s
Article 7. However, constitutions do not often stipulate how this will take
place in practice. That detailed task is reserved for legislators, policy
makers and the judiciary.

In applying the methodology of ESCRs, the International Covenant on
Economical Social and Cultural Rights (ICESCR), which Tunisia ratified on 3
January 1976, provides the framework of state obligations corresponding to each
right. Tunisia, now, as other reforming states preceding it, can benefit from
the Covenant’s binding obligations that, in their necessarily general terms, nonetheless
go far in answering the question of how the rights are to be respected,
protected and fulfilled.

The
Covenants’ over-riding principles that apply to each of the rights enshrined in
ICESCR are:

• Self–determination
  (Art. 1.1
• Nondiscrimination
  (Art. 2.2)
• Gender
  equality (Art. 3)
• Rule of
  law (Art. 2.1)
• Progressive
  realization (Art. 2.1)
• Maximum
  of available resources (Art. 2.1)
• International
  cooperation (Art. 2.1)

We will start with these over-riding principles of implementation of
states’ ESCR obligations, exploring examples from the transitional constitutions
of Brazil (1988), Colombia (1991), Ecuador (2008), Kenya (2010), and South
Africa (1994).