Law, Human rights and development in Africa by Yitay B.A.

Law[Human Rights] and Poverty in Africa
(Yitay B.A.bininabute@gmail.com)

It is difficult to define poverty in a precise statement because poverty has multi dimensional aspects, thus rendering a definition becomes uneasy. The changing concept of poverty through time, space and conditions also contribute to the difficulties of its meaning, for example, traveling in taxi considered as impoverishment in western societies but, it is the sign of better standard of living in Ethiopia.1 So that poverty does not mean the same thing everywhere. Poverty means different phenomena in different countries and regions, depending on the general and acceptable standard of living of that society.2 Poverty is therefore; a relative concept the pauperism of a single mother in London may be the fortune of to an Ethiopian one.3 It is better to render the meaning of poverty in different contexts and life aspects than defining. Many theorists give the meaning of poverty-being poor-in this way:

I. Poverty as Deprivation

Here, poverty is described as lack of basic necessities to lead an acceptable standard of living condition for the society ones live.4 In this approach poverty means lack of food, shelter, clothing, medical care and other materials necessary to lead pleasurable life.5

II. Poverty as Inequality

This theoretical foundation perceives poverty as the inequality in the distribution of income. This aspect set out that, if a system succeeds in equalizing the income of its members, there is no impoverishment in that system.6 The policy makers have the impact to the individual income inequalities or the reverse.7 This approach is the substance of social democracy.


III. Poverty as Culture

Every community inherits a virtue or vices from its preceding ancestors, such inheritance has its own influence on the life of the current generation in useful or harmful way.8 According to this theory, poverty is a way of life for certain societies, which passed from generation to generation in a self-perpetuating cycle. Such sections accept poverty as a culture.9 This culture of poverty involves not just a low income or deprivation but also attitudes of indifference, alienation and marginalization, along with lack of interdependence and cooperation with the large part of the society of their country.10 The typical examples of such communities are, Ghetto societies in USA, primitive societies in Africa.11

IV. Poverty as Exploitation

This is the notion of Marxist and certain contemporary sociologists.12 They asserted that poverty is a form of exploitation by the upper and ruling class.13 They argued that poverty serves many latent and manifest functions for the middle and upper classes, like providing a cheap source of labour.14 Poverty is maintained by the ruling classes, sabotagely, in order to make their lives more pleasant by exploit ting the poor.15 They added that, poverty could be eliminated with the cooperation of the middle and upper classes, but no willingness because they do not gain anything from the pauper section of the society.16All the above descriptions see poverty from the angle of economists, sociologists and politicians. Does poverty only have these dimensions or meanings? What is the meaning of poverty for the lawyers?

The United Nation Higher Commissioner for Human Rights gives the meaning of poverty in the following way:

Poverty is a human condition characterized by the sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights. Economic deprivation –lack of income-is a standard feature of most definitions of poverty. But it this in itself does not take account of the myriads of social, cultural and political aspects of the phenomenon. Poverty is not only deprivation of economic or material resources but a violation of human dignity too. A human rights definition and understanding leads to more adequate responses to the many facets of poverty, responses that do not trample on rights in the pursuit of growth and development. It gives due attention to the critical vulnerability and subjective daily assaults on human dignity that accompany poverty. Importantly, it looks not just at resources but also the capabilities, choices, security and power needed for the enjoyment of an adequate standard of living and other fundamental civil, cultural, economic, political and social rights. Whenever we lift one soul from a life of poverty, we are defending human rights. And whenever we fail in this mission we are failing human rights.17

Moreover, Nobel Prize winner economist Amartya Sen connects development and freedom, that poverty must be seen as the deprivation of basic capabilities not only as lowness of income. Amartya Sen asserted that being poor means individual deprivation of their freedom from poverty.18

1.1. Poverty in Africa

The people of Africa suffer with many complexities like poverty, hunger, disease, instability, migration and bad governance. Africa has been hosted many problems internally from its states and externally from multi national corporations…etc. These challenges have an impact on social, economic and political development of the continent, however, their consequences aggravate the multi- dimensional impediments of Africa, and it becomes worst with regard to complimenting the impoverishment of the continent.

Poverty has been the most evil hostile of Africa. Many peoples of Africa suffer with lack of food, health service, education and isolating from the rest of a country due to poor infrastructure. Moreover, most become hopeless because of unjust governance and unfair judicial decisions. They also forced to live in a country where human dignity and right lies under the shoe of mal administrators. The case is become so tragedy when the victims are women, children, disables and old ages. These sections of the society lack physical, mental and natural capacity to overcome factors that lead to extreme poverty; turning face from the public officials more worsen the problem of these groups. Furthermore, the existence of multi cultural, ethnic and religious people’s in Africa break the heart of these vulnerable groups; women, for example, considered as lower class of many societies in Africa, they prohibited to participate in decision making not only in the community, but also in their home affair; women’s right that articulated in many international and national human right instruments, has not any place in such community. Such underming of women’s role and rights in development or poverty reduction process inevitably thrown that community into deep Ocean of extreme poverty. The contribution of that community to poverty reduction of the continent becomes mute.

In addition to the above facts, periodical reports of the World Bank and International Monetary Fund (IMF) show the deep routed trends of the poverty in Africa, the figures and data represented the blown wind of not poverty but extreme one in the continent. Many researchers, scholars like economists, legal professionals, and sociologists) made their pen out of work due to write out the dominancy of poverty over development in the continent.19

1.1.1. The Historical Impoverishment of Africa

The industrial revolution, which held in Europe in 19th century, compelled those countries to quest raw materials and cheap manpower to their infant industries.20 The European learn Africa as the best destination for their search. Therefore, Africans forced to be colonized by European countries either through warfare or non-violent and systemic ways (like under the coverage of religion and scientific studies). 21 The European vultures then become busy in exploitation of African virgin soils, which has been enriched with so many minerals, including the pride of extravagant western communities-Diamond and the right hand of veto power holders-Uranium. The flora and fauna, historical sites and cultural treasures of Africa also plundered by the colonial powers. Land-the significant factor to defeat pauperism-allotted to colonial settlers being taken from original owners-Africans. Besides, Africans compelled to prohibit and marginalized from education, new scientific discoveries, and promoting their virtues cultural values.22

Africa will not be disadvantaged only by the legacy of colonialism whip. But, the exodus of her young, energetic and healthy manpower to the European, North and South American really made the future destiny unpromising to African countries. The encroachment of slavery, in the mass level, made the continent to face the shortage of human resource, which still become the root causes of pauperism in the region.23Colonialism and its subset slavery not only caused short term problems in the human and natural resources of Africa, but Africans have been lost their unity, identity, confidence up to this time.24

The confrontation of western capitalist and the Eastern socialist countries in the cold war changes the political, economic and social structures, institutions and values of Africa negatively.25 The super powers used the states of Africa for the promotion of their ideology, many dictator regimes appear in this period.26 Post world war second division, that is in cold war, has an impact on African development through being drawback to interstate and sub-region economic relation and cooperation, particularly in scene of trade. How? Because the socialist states of Africa made such relation with non-capitalist states of Africa, vice versa.

The1960 called African Year, because most African countries declare their freedom from the colonization yolk and regime .The post-colonial Africa inherited weak-states, dysfunctional economies. Further, it aggravated by poor leadership, corruption and bad-governance in many states.27 such complexities led Africa to impoverishment through hampering the development of accountable governments.28 The Apartheid and racial discrimination in South and southern Africa countries is also the other cause of pauperism in the sub continent by discriminating the black people to improve his livelihood by using their own resource. Structural adjustment programmes of the 1980s also are the possible mentioned factors for historical pauperism of Africa.29 Structural adjustment programs which operated by international financial institutions, like IMF does not render priority for major economic problems rather they focused on market impediments and price distortions.30 Such adjustments should not be a program for African rather for countries that have developed markets. Moreover, the absence of social service adjustment made such program to be unsuccessful for poverty reduction of the continent.31

Generally, the legacy of colonialism, slave trade, the cold war, post independence mal administrations and transnational financial institutions strategy and program are the major factors for the poorness of the continent by one way or another.32


1.2. Law and Poverty

Poverty seems to be the sole concern of economics discipline. Many scholars see poverty its cause and solutions only from the economic angle. Other disciplines like law, sociology also deal with poverty. Law tries to combat societal problems and evils through its machineries and weapons, like legislation. It imposes certain restrictions on persons, events (like poverty), gangs who are danger for the peace, pleasure and safety of the society. Poverty is not a non-legal matter.33 Law has many ways to serve as a weapon for the fight against poverty. Law can maintain and create poverty, via legislative enactment, bureaucratic action or inaction, or through judicial decisions and interpretation.34 On the other hand, law serves as a redistributive tool to combat inequality, which is the major source of pauperism.35 Law also has a significant role in establishing rights or entitlements (e.g. affirmative action for rural women). 36 Also, social security legislation also tries to back up persons who try to escape from the trap of poverty and such legislation also minimize social burden by support sections of a society who lost their capacity to work due to age, disability; retired guys earn their pension due to social security enactments, which safeguard them in being engaged of begging or becoming dependants on their family. Moreover, law tries to win poverty in promoting legal aid arrangements, probono publico service, permitting pauper file. Above all, the cause of impoverishments mainly emanates from injustices like:
ü Withdrawing a farmer from his plot without fair compensation.
ü Undue suspending of a breadwinner worker from his career,
ü Illegal Seizure of property by police, custom authority and other individuals.

Law then attempts to put such victims in due process, so as to get fair and just decision from impartial court. In doing so, the probability of getting into poverty world of these persons will be give up. The legal system of a given country also has another means to help the efforts of poverty reduction strategies. These are:
v Protecting children from being exploited by irresponsible individuals.37
v Defending employees’ rights to association collectively.
v Fleshing out economic discriminatory practices which targeted against women.38
v Protect the rights of indigenous people so as to enable them to promote their economic, social and cultural values, which in turn improved their livelihood.39

1.2.1. Poverty and Human Rights

Law has multi-folds of thought, human right is among these. Poverty has been mentioned as a violation of human rights in many international human right instruments. Well done! The twentieth century generation because there are more than enough international human right instruments which dealt upon individual freedom from poverty either implicitly or expressly. Among these instruments:

A. The International Convention on Economic, Social and Cultural Rights

In the cold war era there was a division between western who believe in individual liberty adopt International Conventions on Civil and Political Rights (ICCPR), that holds no state interference in individual rights and freedoms; while the Soviets who promote and believe in state interference in regulating individuals rights and activities adopt the International Conventions on Economic, Social and Cultural rights (ICESCR) in 1966 and entered into force in 1976.40The good will and resource of state parties to the convention is needed to realization of the convention, this stated in Art.2(1) of the convention.

The covenant told us the Human Right to freedom from poverty in the following provisions:
¨ Article.6-The right to work
¨ Artticle.7-The right to enjoyment of just and favorable conditions of work
¨ Article 9-The right of everyone to social security
¨ Art.11 (1)-The right to an adequate standard of living for himself and his family, including:
-Adequate food, clothing and housing and
-To the improvement of living conditions.
(2)-The right to be free from hunger
¨ Art.12-The right to enjoyment of the highest attainable standard of physical and mental health.

However, the problem is that the international community does not pay attention to these rights than civil and political rights.41 The impediments related to implementation is also the other headache. Some argue that this is the impact of the cold war division and the downfall of Soviet regime.42 Nevertheless; human rights in nature are indivisibles. enjoyment of one right is indivisibly interrelated to the enjoyment of other rights; for instance enjoyment of the highest attainable standard of health requires enjoyment right to information and education as well as the right to an adequate standard of living.43 Poverty can only reduced by respecting the indivisibility of human rights for instance, the right to vote and the right to education, health, food and housing go hand in hand, because the poor may elect his choice of representative by using his right to vote, the elected officials in turn fulfill education, food and housing to the poor whom s/he represented.44
Therefore, economic, social and cultural rights among the legal framework of human rights sermon about every person’s freedom from poverty. Protecting these rights as equal as civil and political rights will help the poverty reduction efforts of a country. Moreover, states have duty to realize these rights; international co-operation is also needed for putting into practice of the latter. So that, an obligation to the realization of these rights bears on all states, implicitly this means that reduction of poverty by economic, social and cultural rights bears upon every state of the world because poverty is the common hostile of the planet earth.45

B. The Right to Development

Another important area where law and poverty meets is the Right to Development (RTD). The 1986 United Nation Declaration on the Right to Development made significant linkage between Human Rights, development and poverty.46 The Right to Development is the set of rights that protect the survival and livelihood of peoples (i.e. economic and social rights) and civil and political rights.47 This right comprises the relationship between states, citizens of such state and international community and call to get together for the development and prosperity of our planet, if there is development pauperism be reduced, other social injustices also be avoided.48

The major objective of The Right to Development is to combat poverty, which is a drawback to the enjoyment of other rights and above all it touches the dignity of all human beings.49 The declaration of the right to development create possibilities for the improvement of living conditions of human beings, especially, those of developing regions like Africa. The right to development can be seen as a human right that stands to fight poverty; it’s the right hand of paupers. The Declaration of The Right to Development viewed poverty not only as economic deprivation, but also as human right violations.50 This notion reaffirmed by the report of the UN Commission on Human Rights, Special Rapporteurs of the sub-commission on extreme poverty that stated a person’s living and working conditions had a direct effect on the quality of the work itself. It was thus essential to take every aspect of life and not merely the economic into account.

The Vienna Declaration and Programme of Action (1993) broadly expressed the linkage between: -The Right to Development
-Inadequate living conditions and
-The continued existence of wide spread poverty.

This declaration render a clue that development can not be only economic welfare, and it can not measured by GNP growth, the number of schools, hospitals or inflation rate.51The declaration elaborate development from materialistic values to an extensive arena like culture, democracy and respect for all human rights indivisibly. Furthermore, this declaration put down the pre-necessity of the right to development for the enjoyment of all other rights, i.e. mental, physical security will be attained if proper living conditions first fulfills. This means that, in order to stop the legacy of poverty; the promoting and protection of the right to development should come up first.











End Note
1. The new Book of knowledge, Grolier International, Inc., Canada, 1980.p.424
2. Ibid
3. John Clank, Democratizing Development, Earth scan publications, 1991.p.17
4. Diana Dinitto M., social welfare: politics and public policy, New Jersey,1998
5-16. Ibid
17. UNCHR, “Human Rights, Development and Poverty.” Cited in February 2007.
Cited from:http://www.unchr.ch/development/poverty-02.html
18. Ibid
19. Jimmy Adiga, Africa: why Africa is poor, The monitor Kampala, March 05, 2007.
20. Ministry of Education, History text Book for Grade 10, EMPADA, Addis Ababa,
1994.
21. Ibid
22. The Declaration of NEPAD, OAU, adopted in Abuja Nigeria, Oct.2001./ OAU
Archive and Library center,
23. Ibid
24. Ibid
25. Supra 22
26-32. Ibid
33. L. Williams, A.K.j and P.Robson, Law and Poverty: the legal system and poverty
Reduction, CROP, Zed Book: Gothenburg Ltd, 2003
34-42. Ibid
43. UNDP, Poverty Reduction and Human Rights, a practice note, June 2003
44. Ibid
45. Ibid
46. Supra 33
47. Ibid
48. Article. 8(1), United Nation Declaration on the Right to Development. As cited in:
http://www.unchr.ch/html/menu3/b/74.html
49. Ibid
50. Ibid
51. Article.25, the Vienna Declaration and Programme of Action/UN document/adopted
in 1993.