Speech by Ms Navi Pillay at the University of Zimbabwe

University of Zimbabwe

Speech by

Ms Navi Pillay

United Nations High Commissioner for Human Rights

at the University of Zimbabwe

Harare, 24 May 2012

Distinguished Participants,

Dear Students,

Ladies and Gentlemen

[And others as relevant]

I am very pleased to address you today at the University of Zimbabwe.

I would like to express my appreciation to the Government of Zimbabwe for inviting me to visit the country and for the welcome I have received.

This is the first visit by the UN High Commissioner for Human Rights to Zimbabwe. It follows Zimbabwe’s participation in the Universal Periodic Review (UPR), the mechanism which allows the Human Rights Council (HRC) in Geneva to review the human rights record of all UN Member States, during which Zimbabwe accepted 130 out of 177 recommendations made by other Member States. On the occasion of the adoption of Zimbabwe’s UPR report by the HRC Working Group on 12 October 2012, the Zimbabwe delegation noted that human rights should be viewed unselectively, objectively and in an un-politicized manner, and called for serious discussion, consideration and acceptance of social, economic and cultural rights. I welcome this indication from the Government of Zimbabwe of a willingness to engage seriously with the international community on human rights issues.

I fully agree that we need to advance all human rights comprehensively in the pursuit of full implementation of human rights. In my speech today, I will explore in some detail the protection and promotion of economic, social and cultural rights in the context of overall protection.

Indivisibility of rights

Let me begin by making one important point. Although for historical reasons there are two distinct covenants, on civil and political rights (ICCPR) and economic, social and cultural rights (ICESCR), there is only one set of human rights, as originally outlined in the Universal Declaration of Human Rights.

UN Member States, including Zimbabwe, agreed at the World Conference on Human Rights in Vienna in 1993 that “all human rights are universal, indivisible and interdependent and interrelated,” and that “the international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.” This implied a recognition that no human right can be achieved fully without the enjoyment of other rights.

The right to vote or to freely assemble does not mean too much to someone who is suffering from hunger or ill health because she cannot afford decent health care. At the same time, as the noted Nobel Laureate Amartya Sen has so aptly argued, no famine has ever occurred in a functioning democracy. It seems that the full, active and meaningful participation in designing and implementing government policies by those affected enables early warning of a crisis and the formulation of the most appropriate policy responses. Likewise, access to information, including through a free press, enables people to better prepare and protect themselves against such crises.

People everywhere want to be able to fend for themselves, to provide food, shelter and healthcare for themselves, and want to be able to send their children to school. This is the idea of dignity that is enshrined in the Universal Declaration to which the international community, including Zimbabwe, has subscribed. The freedoms of assembly and association, the right to participate in decisions that affect one’s life and the right to move freely to seek opportunities are all essential for a life in dignity. Likewise, human experience demonstrates that the long term investment of capital, access to credit and the development of property, which are all necessary for economic growth and development, and for the realization of economic, social and cultural rights are difficult when there is an atmosphere of repression, fear and rampant human rights abuse. Respecting all human rights is therefore crucial.

Zimbabwe is a party to both the core international covenants, ICCPR and ICESCR, and has thereby accepted the obligations imposed on States under these treaties.

State obligations

But what exactly are the human rights obligations of States, particularly when it comes to Economic, Social and Cultural Rights?  Under international human rights law the State is the primary duty-bearer with regard to human rights, and its obligations can be divided into three categories:

1. The obligation to respect human rights, which requires States to refrain from interfering, directly or indirectly, with the enjoyment of human rights.

For example, the State must refrain from depriving people of access to food by denying needed food assistance to political opponents.

2. The obligation to protect human rights, which requires States to prevent third parties from interfering with the enjoyment of their citizens’ human rights.

For example, the State must ensure that third parties, including parents, do not prevent girls from going to school.

3. The obligation to fulfil human rights requires States to adopt appropriate measures to fully realize human rights.

For instance, addressing the land and housing needs of the population generally requires a national strategy. Designed with the participation of rights holders, such a strategy would prioritize the needs of the most vulnerable and spell out clear objectives and deadlines that need to be monitored.

The activities of business can have a profound impact on the enjoyment of human rights. While business can contribute to the fulfilment of economic, social and cultural rights by creating jobs and revenue, human rights law requires States to protect against human rights abuses by business enterprises by taking steps to prevent, investigate, punish and redress such abuse.

For their part, business enterprises have a responsibility to respect human rights wherever they operate which means that they must exercise due diligence to ensure that they do not infringe on human rights and address any adverse impacts that they have. In 2011, the Human Rights Council unanimously endorsed a set of Guiding Principles on Business and Human Rights, providing for the first time a global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity.

The Resource Dimension of ESCR

In many parts of the world, States assert that a lack of resources inhibits them from implementing economic, social and cultural rights. While I acknowledge this reality, I want to emphasize that respecting and protecting human rights do not necessarily require substantial financial resources. These obligations mainly require States to refrain from violating human rights and protecting the population against possible violations. Many facets of economic, social and cultural rights actually depend on the adoption of the right policies and the necessary laws and the willingness to implement them free from corruption, rather than on money or other resources.

However, some ESCR obligations do indeed necessitate financial resources and require time to fully implement. For example, building infrastructure to provide clean water for each household, or providing local health clinics to reduce maternal and child mortality require both investment and time. Does this mean that States can postpone the implementation of the obligation to fulfil human rights? The answer is no. States need to take immediate measures using the maximum available resources at their disposal. These resources can include both national and international assistance. Moreover, measures that States take need to be efficient andconcrete, and should prioritize those most in need, with clear indicators of progress and timelines for their achievements.

These requirements are encapsulated in the so-called ‘principle of progressive realisation’: The Covenant on Economic, Social and Cultural Rights recognises that full realization of all economic, social and cultural rights generally cannot be achieved in a short period of time, reflecting the constraints imposed by the real world and the difficulties all countries have in ensuring full realization of those rights. At the same time, the principle of progressive realisation imposes an obligation to move as expeditiously and effectively as possible towards that goal.

Consultation and participation in decision-making, non-discrimination, transparency, accountability and the rule of law are key factors for the implementation of human rights generally, and economic, social and cultural rights in particular.

The Content of ESCRs

When it comes to the implementation of human rights and in particular of economic, social and cultural rights, it is sometimes argued that the content of human rights – particularly economic, social and cultural rights – is vague and that there is little guidance on how to implement them in practice. However, the various international human rights mechanisms provide a wealth of guidance. The treaty bodies, for instance, have issued extensive commentaries on specific rights and their content. These treaty bodies are committees of independent experts that monitor the implementation of the core international human rights treaties. They are created in accordance with the provisions of the treaty that they monitor. Similarly, the work of independent experts appointed by the Human Rights Council called Special Rapporteurs, the work of UN agencies and my own Office have also contributed to clarifying the content of rights.

These resources and expertise are available and should be used. The international as well as regional human rights mechanisms can provide expertise to support the efforts for the realization of economic, social and cultural rights in specific country situations.  In this context, I would like again to draw attention to Zimbabwe’s recent participation in the Universal Periodic Review and to the review by the Committee on the Elimination of Discrimination against Women. The outcome of these processes will hopefully assist the country in strengthening the promotion and protection of human rights.

I would also like to encourage Zimbabwe to respond positively to requests for visits by a number of Special Rapporteurs who are also well placed to provide guidance on specific rights. Overall, my Office stands ready to provide assistance to strengthen the human rights capacity of various actors in the country.

I would now like to focus on a few selected rights to explain the obligations they impose on States.

Right to education

The right to education is significant for an informed and meaningful participation of people in democratic processes. To this end, it is especially important to pay attention to equal access to education for women and for the most vulnerable members of society.

Historically, Zimbabwe has had a strong public education system with high levels of primary school enrolment and literacy rates. Recently, the Government adopted the Zimbabwe Medium Term Plan (MTP) 2011-2015, which sets out comprehensive policy objectives and actions that include rehabilitating existing schools to make them safe and secure.  The MTP envisages that up to 30% of the total annual budget will be allocated to the education sector to address challenges and remove barriers to access to education. I welcome the objectives spelled out in this Plan, which is a good step towards the fuller realization of the right to education. However, many challenges remain for Zimbabwe to achieve the realization of the right to education.

Right to Food

Let me move on to the right to adequate food. The right to food is not a right to be fed, but primarily the right to be able to feed oneself in dignity. Thus, realization of the right to food requires creating conditions that allow the people, individually or collectively, to produce food or to buy it. It means a person needs access to productive resources, such as land, seed and water, or to earn a decent income and have access to functioning markets. When people are not able to feed themselves through their own means, in situations such as conflicts, disasters, illness, disabilities and old age, the State must provide food directly.

Zimbabwe used to be the bread basket of the region. However, the country is now struggling to ensure food and nutrition security for all in the country. Food production in Zimbabwe has been devastated by a combination of economic and political instability and natural disasters. In January 2012, UNICEF warned that at least 3.5% of children face starvation due to the on-going drought. In March 2012, the Cabinet declared five drought-hit provinces to be national disaster areas. It is projected that about 1.5 million Zimbabweans will not be able to meet their food requirements in the current lean season.

In order to mitigate the negative impact of such crises, it is critical to take longer-term measures to build people’s resilience against such shocks, including through establishing more effective mechanisms to facilitate fair access to productive resources in line with international human rights standards, decent work and social protection without discrimination. In addition, emergency measures need to be provided to protect people from falling into hunger and malnutrition. For both immediate and longer-term responses, establishing strong accountability mechanisms is fundamental.

Right to land and adequate housing

The elements of the right to adequate housing have been defined under international human rights law. Security of tenure and affordability are two of these important elements.

In this context, the issue of access and use of land are crucial factors. Recently, Zimbabwe played an active role in coordinating the participation of the Africa Group in the inter-governmental negotiations on the Voluntary Guidelines on the responsible governance of tenure of lands. The Guidelines provide guidance on access to land, and have incorporated a human rights-based approach. The Guidelines have been adopted under the auspices of the Food and Agricultural Organisation, joined by Zimbabwe. I would encourage Zimbabwe to now move ahead on implementing these Guidelines in line with international human rights standards in the formulation and implementation of its land reform and management policies.

Legal security of tenure means that, regardless of the type of tenure of an individual or a group (owner, renter or even without a formal title), everyone should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.

Affordability means that the costs associated with housing (rent, mortgage, etc.) should not threaten or compromise the attainment and satisfaction of other basic needs. For example if the rent of a family is so high that they do not have money left to buy food or medicines, then there is an affordability issue.

In many places in the world, people have no official title to land or housing, and live in so called informal settlements. Informal settlements are primarily the result of rural–urban migration because of the lack of access to basic services and income generating activities, or because of poverty, homelessness, landlessness, lack of affordable housing, or forcible displacement.  It is unfortunate that in many places, including here in Zimbabwe, the response to what is essentially a poverty issue has been forced evictions of those living in informal settlements, rather than a more human rights sensitive approach.

Numerous studies show that forced evictions do not resolve the issue of informal settlements: people need to have access to jobs and will therefore have no choice but to return and set up new informal settlements, perpetuating the cycle of evictions. Evictions cause further destitution and poverty, are costly and cause long-term damage to the whole of society. Evictions should not occur at all unless alternative adequate accommodation is provided.

During my visit, I have not had the opportunity to visit those evicted during Operation Murambatsvina. Following the events in 2005, the United Nations Secretary-General appointed a Special Envoy to assess the situation. I am particularly interested to hear how the Government has followed up on her recommendations. I have raised the broad evictions with my Government interlocutors, and will do so in more detail with the Minister of Lands, Land Reform and Resettlement.

I would now like to turn my attention to some additional issues that have been brought to my attention during my meetings over the past days.

Sanctions

One such issue is the impact of sanctions imposed by some Western Governments on Zimbabwe on economic, social and cultural rights. Some of my interlocutors have argued that these sanctions have had a negative impact on the population. According to the Zimbabwe Demographic Health Survey 2011, the Maternal Mortality rate now is at 960 per 100,000 live births, whereas in 2005-2006 it was at 555, an increase of more than forty percent in just six years. At the same time, the limited access to clean water has led to outbreaks of typhoid and cholera. I recognise that other factors may be contributing to these declining indicators. Nevertheless, there is no doubt that sanctions have had a harmful impact on Zimbabweans.

In the context of sanctions, I would like to refer to General Comment 8 adopted in 1997 by the Committee on Economic, Social and Cultural Rights which emphasises that the imposition of international sanctions entails obligations both for the targeted State as well as those imposing sanctions with regard to economic, social and cultural rights.

Regarding the targeted state, the imposition of sanctions does not nullify or diminish its obligations under economic, social and cultural rights. While sanctions might well diminish the capacity of the affected State to fund or support some of the measures necessary for the fulfilment of economic, social and cultural rights, the State remains under an obligation to ensure the absence of discrimination in relation to the enjoyment of these rights, and to take all possible measures, including negotiations with other States and the international community, to reduce to a minimum the negative impact upon the rights of vulnerable groups within the society.

At the same time, those imposing the sanctions have to take economic, social and cultural rights into account when designing an appropriate sanctions regime. Furthermore, they are obliged to take steps, individually and through international assistance and cooperation, to respond to any disproportionate suffering experienced by vulnerable groups within the targeted country.

Good governance

Another issue that I feel compelled to raise is the issue of good governance. Mismanagement, corruption, diversion of funds, allocation of resources for goals that do not contribute to the common good can significantly obstruct the achievement of economic, social and cultural rights. This was most recently recognized by the Human Rights Council in March when it passed a resolution recognising the detrimental impact of corruption on the protection of human rights and on the ability of governments to fulfil their human rights obligations, particularly the economic and social rights of the most vulnerable and marginalized.  It is my firm belief that respect for fundamental human rights principles such as equality, non-discrimination, participation, transparency, and accountability are essential to the fulfilment of all human rights and must be integral to an effective anti-corruption strategy. I urge the Government of Zimbabwe to address the issue of good governance as a priority, also to ensure equitable economic development.

The Role of Civil society in the promotion and protection of ESCRs

Let me end by reflecting on the crucial role of civil society in realizing economic, social and cultural rights. I use the term “civil society” in a broad sense to also include academic and other institutions. Universities and academics can play an important role in the promotion and protection of economic, social and cultural rights. By teaching and raising awareness on human rights standards, they positively contribute to a better understanding of economic, social and cultural rights, hence their use by future professionals, not only lawyers, but also architects, urban planners, health, education professionals and others.  Research and studies also play a crucial role in identifying relevant issues in a given country and proposing ways of addressing them.

Civil society provides a powerful and essential stimulus for social change and justice. This is why an enabling and free environment for their activity is so essential for a country. Protecting and promoting the work of NGOs, human rights defenders, advocates, journalists and lawyers and communities themselves fighting for their civil and political rights and economic, social and cultural rights is a prerequisite to the development and prosperity of any society.

Growing up in Apartheid South Africa, I never believed that a transformation would occur in my lifetime. But it did. Recent movements on our continent and elsewhere convince me that change and transformation are possible. The claims for fundamental freedoms from fear and want also resonate in the Occupy protests that began in Wall Street and spread to other major cities across the world.

These protests showed how violations of rights—economic, social, cultural, political and civil rights—are closely linked and produce chain reactions.  The protesters asserted that the denial of people’s participation in shaping the destiny of a nation and the unfair allocation of its wealth are all too often carried out by those who wield power or rig the political game for their own benefit.

More and more people across the globe are not willing any longer to defer unquestioningly to invisible forces and unaccountable institutions. They are demanding higher levels of accountability — from their governments, from international institutions, and from the private sector.  They make clear that freedom from fear and freedom from want are the principal responsibilities of governance and demand a return to the rule of law — including in the economic sphere.

Their quest for dignity is to make the promotion, protection and fulfilment of human rights as the central purpose of economic and political systems. The fight against discrimination and exclusion is at the core of their demands for all, including for women and groups that historically have been kept at the margins of active political and economic life.

I thank you for your attention.