Inclusion by exclusion? an assessment on justiciability of socio-economic rights under the 2005 interim national constitution of the sudan

Abstract

This research is an attempt to ascertain whether or not socio-economic rights provided for in the International Covenant on Economic, Social and Cultural Rights(CESCR), ( and by implication all other international human rights instruments ratified by the Sudan) are justiciable and enforceable before the courts in the Sudan. The concern to determine the legal status of these rights in the Sudan is informed by the fact that, whereas section 27 (3), the find and the founding section of the Sudan Bill of Rights incorporates all international human rights instruments and maybes them an integral part of a justiciable and enforceable Bill of Rights; section 22 which is the last section to the Guiding Principles and Directives, ousts the jurisdiction of the court with respect to socio-economic rights provided for In that chapter. Incidentally, socio-economic rights provided for under the Guiding Principles and Directives chapter, are equally contained in the CESCR. This creates a legal tension between these two sections, leading to reasonable uncertainty. This world resolves this tension in favour of the justiciability of all socio-economic rights provided for in the CESCR notwithstanding the fact that they are contained in the Guiding Principles and Directives chapter. Proceeding on this premise, the author proposes a theoretical framework for the justiciability of socio-economic rights that combines the South Africa's reasonableness test to enforcing SER with the minimum core approach of the Committee on ESCR for the Sudan.