4. 3 The Right to Water in the Zambian Context
4.3.3 The Debate in Context: Role of Treaties in Zambian Law
4.3.4.1 The Purpose of Directive Principles
Now, there are a number of issues that arise from these clauses. First, the role of directive principles of state policy has to be seen in context. Traditionally, the Commonwealth Constitutional System avoided including directive principles on the basis that the constitution is a "prescriptive" rather than
"programmatic" statement and if programmatic statements are included they are usually preamblar statements (Kabudi, 1995:275). The main reason why programmatic principles are seen not to be appropriate in a constitution, so the argument goes, is mainly that the constitution is enacted,
...for the sole purpose of establishing structures of government and its institutions and prescribing judicially enforceable rules of law. Statement of national goals and directive principles are not part of the traditional Anglo-American view of constitutions because they are programmatic in nature, in the sense that they provide for a progamme of a political, socioeconomical and cultural development and ethical principles to be pursued by the government and other organs and they are normally non-justiciable, that is, they cannot be enforced in a court of law (ibid).
This is the tradition that was adhered to by the British as they negotiated the drafting of the constitutions of the newly independent countries within the empire. However, this tradition has been gradually abandoned by a number of states who decided to include directive principles.
First introduce by the Irish Free State in 1922, directive principles were incorporated in the Indian Constitution in 1947, followed by Pakistan in 1962, Sri Lanka and Bangladesh in 1972, Nigeria in 1979 (ibid), and Zambia in 1996. Reasons for including the fundamental and directive principles in these constitutions include ideological commitments to a set of social and economic goals to which the nation aspires. For some time now, these principles are expected to play a transformative role. This view was affirmed by the Indian Supreme Court when it stated that,
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[t]he purpose of the Directive principles is to fix certain social and economic goals for immediate attainment.... Through such [principles] the constitution seeks to fulfil the basic needs of the common man and change the structure of society. It aims at making the Indian masses free in the positive sense (in Kabudi, 1995: 277).
Indian Courts have played an active role in ensuring that the state pays attention to the ideals contemplated in these principles. Many Indian judges have progressively interpreted these parts of the constitution together with justiciable clauses such as the right to life to give meaning to the broader social economic objectives of the constitution.111 A clear statement on the role of the Directive Principles is, however, found in the Nigerian Constitution Drafting Committee Report which states that,
A Constitution should not be simply a code of legally enforceable rules and regulations; it is a charter of government, and government involves relations and concepts that are not amenable to the test of justiciability or capable of enforcement only in courts of law. The objectives may be in the nature of immediate specific policy goals or of the long-term ideals.... Unless these goals and the fundamental attitudes and values that should inform the behaviour of its members and institutions are clearly stated and accepted, a new state is likely to find itself rudderless, with no sense of purpose and direction. By defining the goals of society prescribing the institutional forms and procedures for pursuing them, a statement of fundamental objectives and directive principles in our constitution seeks to direct and concert the efforts and actions of the people towards the achievement of these goals (ibid).
Often the argument against including programmatic statements or principles in the constitution is that it may lead to judicial activism, a situation that undermines the fundamental democratic principle of the separation of powers (Corder, 2002). At the heart of this debate is the concept that the judiciary has no mandate to meddle in matters pertaining to policy which is a province of elected members of the executive who have people's mandate to formulate and implement policy. In the case of the courts, judges are not elected (there are appointed) and therefore lack the legitimate mandate to interfere with
matters of policy formulation.
The Courts however, have jurisdiction over matters related to how the policy is implemented (procedural mandate) to ensure that government policies are in line with constitutional values and objectives. In this view, the widely endorsed notion of the non-justiciability of directive principles which largely include most of the socioeconomic rights, is often vilified on the basis that making such principles justiciable would lead the courts astray into deciding on maters of policy formulation rather than matters of policy implementation which is their rightful constituency. In this regard, the South For an example of how the Indian Courts have made use of justiciable parts of the constitution to give effect to the non- justiciable social objective such as those contained in the Directive Principles see Per Olgla Tellis vs. Bomaby Municipal
Corporation [1986] A.I.R (Sup.Ct.) 180.
African Courts have been at pains to decide whether an act by the executive amounts to policy formulation or implementation. If an act by the executive falls within the former category the courts are expected to be guided by the decorum principle of judicial deference; while if it falls within the latter, the courts are expected to intervene772. But this task (of distinguishing policy formulation from policy implementation) is often a matter of pre-disposition of a particular judge, and the arguments are often not convincing.
So the relevance of directive principles in a constitution should not be premised on the understanding that they be justiciable or not, but that they constitute a set of goals to which various organs of the state should orient their efforts and actions.
More importantly, the "guiding role" that directive principles have been given in the Zambian case, provides a fertile ground for holding the state accountable to the people. According to the principles contained in Article 111 of the Zambian Constitution, formulation and implementation of national development policy and laws should be in line with the norms contained in Article 112, which include among many other things, that the state endeavours to "provide clean and safe water" (emphasis added). Key to the interpretation of this section is the use of the word endeavour, which is not a command, but an exhortation to take the action mentioned. In this case, situations where state policies and activities seem not to pay attention or diverge from these norm, present the grounds for reminding the state of its duty towards these objectives. Most importantly, this directive creates a norm against which policy and legislation should be assessed by all the stakeholders especially NGOs and civil society at large.
Unfortunately, this provision has not been utilized mainly because of the belief that only a legally enforceable clause should be relied on. We can see here the influence of legal positivism that only what is codified in statutes and regulations, capable of being enforced is what should be regarded as human rights. Heavy reliance on this clause has dwarfed not only the state's sense of expediency to realize the
Pharmaceutical Manufacturers Association of South Africa: in Re: Ex Parte President of the Republic of South Africa
& Others 2000 (2) SA 674 (CC). This a case in which the President of the Republic of South Africa appealed to the Constitutional Court against the Supreme Court of Appeal's decision that Proclamation R49 of 1999 by the President of the Republic of South Africa was null and void, thus rendering the South African Medicines and Medical Devices Regulatory Act, 132 of 1998 that the Proclamation was supposed to bring into force, ineffective. The question raised in the Constitutional Court was to consider "whether a court has the power to review and set aside a decision by the President" of the RSA to bring an Act of Parliament into force (See Pharmaceuticals, parag. 1).
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right to water , but also the public debate that can create alternative routes113 of giving effect the rights protected in the constitution.