The Guide identifies equality and non-discrimination strategies that NGOs, lawyers and activists may employ in seeking to advance economic and social rights (ESRs) before courts. It is also accompanied by an online Compendium of useful cases in which equality and non-discrimination concepts and approaches have been employed to advance ESRs.
This Guide will inspire and help judges and lawyers working at national level to litigate cases involving economic, social and cultural rights.
In particular, it aims at giving examples from a large variety of countries and jurisdictions of how courts and other bodies have dealt with the adjudication of these rights.
The Guide also addresses issues that legal practitioners are faced with at the different phases of litigation, from initiating a case and evidence building to the provision of remedies and the enforcement of judicial decisions.
Should judges interfere with the enforcement of public policies implemented by the executive? If yes, what would be the best way to do so?
This issue of the INTERIGHTS Bulletin focuses on litigating the right to education in Africa. It includes the following articles:
Litigating the Right to Education: Editorial
Solomon Sacco and Susie Talbot
Africa and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
Malcolm Langford and Rebecca Brown
Litigating the Right to Universal Primary Education: Challenges and Prospects
The following articles relevant to the justiciability of the right to education can be found in this INTERIGHTS Bulletin:
This article considers the question of the justiciability of social and economic rights from both a conceptual and an experiential perspective. It first reviews some of the major concerns that are frequently raised in relation to whether social and economic rights can, or should be, adjudicated by courts, drawing on commentary from experts and judicial and quasi-judicial bodies considering this question. This is followed by an overview of the growing body of jurisprudence from domestic courts and regional and international bodies that have adjudicated social and economic rights.
This article critically evaluates case-law developments regarding the right to basic education as enshrined in the South African Constitution and argues that litigation, or at the least the threat of it, plays an important role in the realisation of the right to education.
Chapter two (p.47-56) is dedicated exclusively to the clarification of justiciability and the challenges of justiciability as a tool for social transformation and inclusion of the most vulnerable. It presents ‘justiciability’ as one of the steps of a holistic strategy to overcome poverty. It defends the role of judges as guarantors of rights and freedoms of the most invisible members of society.
Drawing upon a full range of case law, the report shows that adjudication of economic, social and cultural rights is possible, desirable and already being carried out by courts in all continents. The report addresses the legal and political objections to the justiciability of economic, social and cultural rights and confirms their justiciability.