On 23 March 2023, the Centre for Human Rights, University of Pretoria (the Centre) in partnership with the University of Antwerp, Belgium hosted a Roundtable dialogue on litigating the right to development in domestic courts in Africa. The dialogue was held alongside the visit of the King and Queen of Belgium to South Africa. The dialogue was conducted in a hybrid format with both physical and virtual participants including, delegates from the Government of Belgium and Flanders, Academic partners from the Free State Centre for Human Rights, University of Free State, University of Antwerp, University of Ghent, Université Saint-Louis-Bruxelles, Vrije Universiteit Brussel, Belgium, Civil Society actors and human rights practitioners and students from the Centre for Human Rights among others. 

In her welcome remarks, Prof. Elsabe Schoeman, Dean Faculty of Law, University of Pretoria expressed gratitude for hosting the Belgium royal visit and this roundtable as a flagship platform. She welcomed the participants to the roundtable and also acknowledged the great partnership between the Centre and the University of Antwerp. Prof. Schoeman noted that the importance of the right to development for many communities, and litigation should always be a last resort when rights are not enforced. Prof. Frans Viljoen, Director Centre for Human Rights and Prof. Frederik Swennen, Dean University of Antwerp gave opening remarks with Prof. Frans emphasising the two-way celebration of the dialogue, first on the ongoing well-established collaboration between the University of Pretoria and Belgium and secondly the increasing recognition and visibility of the right to development on the continent and internationally. He reminded the participants that the Centre has for 20 years conducted the Advanced Human Rights Course on the right to development (AHRC) and with the set-up of the UN Expert Mechanism on the right and the ongoing negotiations of a treaty on the right to development, there is increasing acknowledgement of the right at the international level. The Centre has also seen increasing partnerships arising from the AHRC, to now an Annual international conference on the right to development with partners including the Free State Centre for Human Rights, University of Free State, National University of Lesotho, Thabo Mbeki African Leadership Institute, University of South Africa and the University of Dayton. He appreciated the support the Centre has received over the years from the Belgian Government and the Government of Flanders. Prof. Frederik Swennen reiterated the privileged partnership between the University of Pretoria and the University of Antwerp and appreciated the Flemish funding for these collaborations and specifically towards the realization of the right to development of marginalized and vulnerable communities. He noted that the dialogue is an important platform to further interrogate how litigating the right in domestic courts will help improve the quality of life of communities.

The keynote address was presented by Prof. Christopher Mbazira from the School of Law, Makerere University focusing on the importance of using the African Charter on Human and Peoples Rights (the Charter) to protect the right to development and its enforcement at the domestic level. He argued that the right in the Charter is located in the anti-colonial struggles linking it to the right to self-determination, giving “peoples” the right to freely determine their political status and pursuit of their economic and social development. Specifically, he referred to Article 22 which guarantees “peoples” the right to their economic, social and cultural development. The Article further gives states the duty, individually or collectively, to ensure the exercise of the right to development. Prof. Mbazira also made reference to the United Nations Declaration on the Right to Development (UN-DRTD) which lays down the duty of states and confirms the right to development (RTD) as an inalienable right, which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development. However, he noted that even with this clarity on the right and 36 years of existence of the African Charter, the continent has not seen adequate jurisprudence developing on the right. There are a number of African countries that have embraced the RDT in their Constitutions, including in their Bills of Rights or the National Objectives and Directive Principles of States Policy (NODPSP). There are cases in which the right derives from the domestication of the African Charter on Human and Peoples Rights as is the case in Nigeria but for others, as is the case in Malawi and Ethiopia, the right is protected as part of the Bill of Rights. In Ghana and Uganda, elements of the right are captured variously in the NODPSP. 

He further noted that even with this clarity, the Continent has only seen a handful of cases on the RTD generated. At the regional level, the RTD has only thinly featured in litigation. The first case to engage with the RTD is the SERAC case, which looked at the RTD in the context of environmental degradation, together with the right to a clean and healthy environment. In the Endorois case, the Commission elaborated that recognising the right to development requires fulfilling principles of equitable, non-discriminatory, participatory, accountable, and transparent, with equity and choice”. Also relevant is the decision of the African Court on Human and Peoples Rights in the Ogiek case where the Court found that Article 22 of the Charter on the RTD had to be read in conjunction with the UNDRTD, thereby making the Declaration a source of inspiration in interpreting the Charter. This low citation of the Charter in domestic litigation is attributed to the low volume of litigation seeking to enforce human rights on the continent and also limited knowledge of the relevance of the Charter as a source of law on the part of lawyers and judges. Nevertheless, there are some domestic courts which have cited the decisions without incident including the Constitutional Court of Uganda in Centre for Health, Human Rights & Development & Anor. v Attorney General. While invalidating the use of derogatory terms to describe people with mental disabilities, the Court indicated that it was drawing inspiration from the African Commission on Human and Peoples Rights Communication No. 241/2001 (2003) of Purohit and Moore v. The Gambia. 

Prof. Mbazira further argues that the limited enforcement could be attributed to the place of the right in the legal framework, accessibility to courts and drivers of constitutional litigation. He explained that the enforcement of the RTD in domestic courts is dependent on the status of the right in the national legal framework. In countries where the right is protected as directly justiciable, it has been enforced as seen in the Nigeria case of Gbemre v Shell Petroleum Development Company Nigeria Limited and Others where the Federal High Court of Nigeria based on the fact that the Charter was part of the laws of Nigeria and found that activities of the gas flaring among others violated the right to development in Article 24 of the Charter. Botswana is another country that has acknowledged the relevance of the African Charter as a source of law as expounded in the case of Sesana and Others v Attorney General where the Court upheld the right of participation by people in development decisions. In his conclusion, Prof. Mbazira makes recommendations that to promote enforcement of the RTD, advocacy should be undertaken to include the RTD in national legal frameworks through influencing constitutional review, legislation making and judicial interpretation and the need to promote the protection of the right or elements thereof. He also recommended the promotion of constitutional review and constitutional litigation by empowering groups and individuals to articulate the RTD through litigation. 

Responding to the keynote, Prof. Koen De Feyter, Professor of law at the University of Antwerp and Chair of the UN Expert Mechanism on the Right to Development noted the potential and difficulties in litigating the RTD in Africa. He re-echoed the clear lessons highlighted in the keynote for future collaborations for capacity enhancement on the right at the level of judiciary and civil society actors that are important in bringing cases. He also noted the importance of building capacity at the legislative level, especially regarding concerns about the rules of standing and the importance of public interest litigation. He emphasized 3 points that are critical to the potential of improving the human rights protection of vulnerable and marginalized communities. These are the communitarian dimension of the RTD and the African Commission's definition of ‘peoples’ as including communities not accommodated by dominant development paradigms, the duty of states to protect their communities, especially when collaborating with private actors and the duty of the state to collective duty to ensure the exercise of the RTD. On his part, Dr Chairman Okoloise from the African Commission on Human and Peoples Rights highlighted the importance of having a clear understanding of the conceptual and philosophical dialectic of the notion of the RTD and how the lack of clarity even at the level of litigants has affected the ability to sue or litigate under the RTD. There is a need for African scholars to properly situate the right within the African Charter and give confidence to litigants to rely on the Charter to litigate. He argues that it’s not that there is limited jurisprudence on the subject, it’s that there is limited jurisprudence available as the Commission has had a number of decisions on the right that are yet to be made public. He agreed with the keynote on capacity building of judicial officers and CSOs but also notes that strategic litigation is another important factor to ensure that the RTD is litigable. The role of civil society in ensuring that these rights deliver to ordinary communities calls for active involvement and getting more knowledge on the right and how it can be litigated at the domestic level. 

Dr Satang Nabaneh from the University of Dayton highlighted the importance of interrogating the issue of conflict of priorities as it relates to the RTD and how it impacts the realisation of the right. She highlights the two ways in which to look at the conflict. At a large scale, there is a need to look at development agendas including, Agenda 2030 and Agenda 2063. The question should be on how these interact with each other and the implementation phase of these agendas as they have strong implications for the prioritisation of actions and effectiveness. At national level, the question deals with notions of the availability of resources and issues of trade-offs while dealing with principles of equality and non-retrogression and what this means for more marginalized and vulnerable groups. She also noted the issues of human rights-based approaches to development that don’t offer a clear matrix around trade-offs and what the balancing act is to improve one right at the expense of another. Prof. Stefaan Smis from the Vrije Universiteit Brussel made his intervention on the importance of explaining the right and the need to develop a strategy for litigating the RTD. He emphasized the need to develop a plan of action drawing some inspiration from climate action strategies and strategic litigation therein. He further noted the importance of selecting cases that advance the discussion on the RTD and are supported by broad coalitions and networks, including experts that can share knowledge and strategize on these cases. Prof. Sébastien Van Drooghenbroeck from the Université Saint-Louis-Bruxelles noted that the RTD as a human right suffers from a certain lack of justiciability understood as to its capacity to be enforced by a judge. The question of justiciability is not on the existence of the right but rather on its effectiveness due to the principle of separation of powers. Ms Christine Nkonge from the Katiba Institute Kenya also shared her experiences from Kenya and the broad protection of the RTD within the Kenyan Constitution. She informed the roundtable that as an institute they have invested a lot in training the judiciary on the RTD. However, she noted the challenges around strategic litigation and the pushback they have experienced around enforcement, especially for resource-intensive remedies. 

Working with constitutional lawyers and litigants, they are developing an incremental approach to address substantive human rights issues and pushing for structural interdicts to ensure enforcement. 

In her closing remarks, Secretary-General Julie Bynens of the Flanders Chancellery & Foreign Office reiterated the key objective of the Flemish policy of defending and promoting the values of the universal and European human rights treaties. She also noted that this has been extended to the international arena where the government is a key supporter of the international human rights systems—a system which in the past year has come under increasing strain. She noted that it is now more important than ever that international commitment to human rights, peace and security is upheld.  Globally human rights are under increasing threat making it crucial that we understand and adhere to international human rights standards. She also highlighted the various support extended to different groups and individuals facing human rights abuses and violations. She further emphasized that when the rights of LGBTIQ communities are threatened and fear for their safety, when people's fundamental rights like equality and non-discrimination are reduced, and freedom of expression and peaceful assembly are at stake, the Flanders government cannot and will not be silent. 

[VIDEO] Roundtable Dialogue can be viewed


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