Social security remains an illusion

Michelo Hansungule
Women for Change

Despite having well-developed social policy on paper, Zambia lacks a proper system to implement the right of access to social security, making these policies as well as the international instruments the country has ratified not worth much more than the paper they are written on. The omission of social security from the Constitution means that the 70% of people who live in poverty have no legal recourse to improve their situation. Meanwhile gender considerations have also been ignored, forcing women make ends meet as best they can as they face gender discrimination in the private and public sectors.

While Zambia has accepted the normative standard,it does not implement the universal right to social security. The 2007 SocialWatch theme raises a fundamental issue for the millions of poor people. For thisgroup, which constitutes the majority of the population, the universal right tosocial security, as also prescribed in the Universal Declaration of HumanRights, is a distant dream. There is simply no mechanism in place to ensureimplementation of this right or to make it ‘a reality’ since the countrylacks a proper and rational social system and the necessary capacity to managepoverty.

In policy but not in practice

The country does however have some of the most eloquently written socialsecurity policies and statements as demonstrated in recent policy instruments.For example, strategic policy interventions since the 1990s refocused governmentattention through the creation of the Ministry of Community Development andSocial Services (MCDSS) as well as the Ministry of Youth, Sport and ChildDevelopment. The aim of the MCDSS is to respond to various internationalefforts, especially at the UN level, including the International Conference onPopulation and Development in Cairo and its Programme of Action and the
World Summit for Social Development in Copenhagen.

Through these institutional structures the government has developed severalpolicies towards making medical and educational services free and accessible forpoor and vulnerable populations, such as the elderly, orphans, children withspecial needs, and children and adults with disabilities. The educational policyhas banned authorities from sending pupils away for not being able to pay theirfees and establishes mechanisms to provide vulnerable children with financialassistance to pay for school fees and supplies. It promised to establishscholarships and bursaries for poor and vulnerable children, targetingespecially girls, orphans and children from rural areas and eliminating directcosts for children with special needs. Through the same policy, 5% of schoolfunds were designated for funding free education and supporting poor anddisabled children.

New health policy aims to extend free health services to children under the ageof five and adults over the age of 65, as well as to tuberculosis patients, andpeople living with HIV/AIDS. The policy states that the cost of any medicalservice must take into account the person’s ability to pay.

In practice there is little sign of any of these policies and institutionalsystems. Zambia does not have a system of social grants to support those whoqualify. The few people who receive benefits do so at the discretion ofauthorities, rather than as the result of a guaranteed right. Assistance iserratic and the amount of that assistance not fixed. No clear procedures existon how to access assistance. There is no transparency in the administration ofthe grants. Government and field staff refuse to disclose the number of socialgrants beneficiaries, saying there could be chaos if this information weredisclosed. Even though the policy has abolished school fees, however, thegovernment has not come in to fill the financing gap created by the introductionof this policy. Consequently, several schools have ignored the policy sinceotherwise they could not function and parents are still being taxed as before.Another severe problem is the fact that the government does not remit its duesto its staff, which severely affects the schemes.

A worrying issue is that most of these policies are based on the Eurocentricconcept of social security with great emphasis placed on money and thegovernment-signed social security cheque. The social welfare policies in placeat the MCDSS and in other government ministries and departments do not encompassAfrican values on social welfare despite the fact that most citizens rely ontraditional African culture to meet their social security needs. Governmentsocial grants, although important, cannot displace the natural system that hasserved people for centuries and should have been included in the government’sconcept.

Constitutional challenges

The Constitution poorly reflects the true situation in the country. While themajority of people are living in poverty, the Constitution refuses to giverecognition to this reality and make provisions for the universal right tosocial security. More than 70% of Zambians live in extreme poverty.Nevertheless, the Constitution is silent on issues that affect this majority.Therefore it is not being applied practically to address the reality of thoseliving in poor and precarious conditions and only remotely affects the lives ofordinary people in the country.

There are scant references to social security in the preamble of theConstitution in the form of pledges. It is common knowledge that by Zambian law,the preamble is no more than decoration. The August 1991 Constitution which isstill partly in force “pledged the right to equal access to social, economicand cultural rights and facilities provided by the state...”

There were also pledges affording every citizen the right to educationsanctified by a duty on the part of the state “to the rights and dignity ofall members of the human family” in Act 18 of the 1996 Constitution. Thepreamble to the 1996 Constitution “recognizes the equal worth of men and womenin their rights to participate to build a social system of their choice.” Thisis the closest the Constitution comes to the issue of access to social security.

Part 1X of the Directive Principles of State Policy enshrines legallynon-enforceable standards bearing on several aspects which would amount toeffective access to social security. Article 112 and in particular paragraph (f)enjoins the state “to provide persons with disabilities, the aged and otherdisadvantaged persons such social benefits and amenities as are suitable totheir needs and are just and equitable.” This is the only line in the wholetext to explicitly refer to “benefits and amenities” for vulnerable groups.Prior to that, there is a reference in paragraph (e) to “equal and adequateopportunities” but paragraph (f) is the only one to address social security inspecific terms. Paragraph (g) makes reference to culture, tradition and customwhich can be interpreted to mean that it seeks to encapsulate traditional socialsafety nets such as the extended family system. Important as they may be, allprovisions of Part 1X or the Directive Principles of State Policy in theConstitution are not justiciable. In terms of Article 111, courts have beendenied jurisdiction to entertain any complaint based on any aspect of this partof the Constitution. In this way, the right of access to social security is notfixed in the Constitution and the failure by the framers of the Constitution toarticulate these standards directly in the Bill of Rights severely faults it.Additionally, Article 110 introduces a clawback clause which limits the duty ofthe state with regards to sustaining the application of the directiveprinciples.

Furthermore, women are not reflected in the Constitution. Despite the fact thatmore than 50% of the population is comprised of women, the Constitution saysvery little of women on issues such as social security, and rather blatantlydiscriminates against them in several ways.

With such a defective constitutional framework, the poor have been deprived ofthe means with which to legally fight social injustice. Attempts to change thissituation by rewriting the Constitution are currently being hampered byauthorities trying to protect their own interests. President Mwanawasa hasexpressed a strong desire to tailor the Constitution to his liking and hasconsequently kept this process close to him. The motivation behind these actionsis to protect the President from persecution upon completion of his term inoffice.

Ratified by not respected

Although most international human rights instruments on social security havebeen ratified, these have yet to be translated into practical benefits for theintended recipients. The following UN conventions have been ratified by thecountry:

International Covenant on Economic, Social and Cultural Rights (ICESCR)ratified on 10 April 1984.
International Convention on the Elimination of All Forms of RacialDiscrimination ratified on 4 February 1972.
Convention on the Elimination of All Forms of Discrimination againstWomen ratified on 21 June 1985.
Convention on the Rights of the Child ratified 6 January 1991.

The country was also a founding member of the African Charter on Human andPeoples’ Rights, ratified in 1984.

Although Zambia has ratified a number of International Labour Organization (ILO)conventions, it has not yet acceded to the ILO Social Security (MinimumStandards) Convention of 1952 or the Workers with Family ResponsibilitiesConvention of 1981. There are no indications from either the Ministry of Labouror the Ministry of Justice that the government is contemplating acceding tothese two conventions. In practice, there is hardly any difference whether thecountry ratifies the instruments or not. The instruments that the country hasratified have no value beyond the paper on which they are written. Although someof these instruments, such as the ICESCR, have been part of the legal domain formore than 30 years, they have not led to an improved social security environmentor made an impact on the particular situations of individuals to any significantdegree.

Gender and social security

While poverty affects all, it affects women more than men, which is also thecase of disabled women. While some policies are sensitive to gender, themajority have no gender content. For instance, gender was not taken into accountin formulating the policy and legislation on privatization. Likewise, there wereno women representatives on the board of the Zambia Privatization Agency.Although privatization affects women more than men, they were not part of theconflictive decision-making process undertaken to reconstruct the country’seconomy which left workers out in the street, unable to put food on theirtables. Similarly, the interests of human rights organizations were also notconsidered.

Two examples of the effects of privatization are important to note. The hastyliquidation of Zambia Airways - the national airline - and the privatization ofNitergen Chemicals and Kafue Textiles brought numerous social challenges to thepopulation, and particularly women. As the custodians of families – oftenwithout independent incomes – women were affected when their husbands losttheir employment due to the privatization restructuring policy. Many were leftwithout an alternative means of employment and without the necessary capacitiesto provide for their families. Some women took to the streets to undertakemenial trading jobs in a bid to put something on the table. Additionally, womenhave been exposed to sexual exploitation while trying to claim their deceasedhusbands’ entitlements, dues from their employers or benefits fromtight-fisted social security schemes. This is the result of defective socialwelfare and privatization policies which did not include gender as a centralpillar of the economic reforms championed by the government and its allies.

Living with social insecurity

As explained above, social security remains an illusion to most people. Themajority of citizens have not been insured against future vulnerabilities suchas old age and disability, with women being the worst victims of this neglect.In both private and public life, women are more greatly affected by socialinsecurity than their male counterparts. Despite the government’s obligationto provide social security to its population, it has not expressed the necessarypolitical willingness to do so. Vulnerable people – the majority of thepopulation – continue to live socially insecure lives.

This is in contrast to the several beautifully worded policies written by thegovernment over the years. Looking at its policies alone, Zambia has one of themost effective social security systems in the world. At the same time, there isno specific legislation on social security. This is echoed by the Constitutionwhich does not guarantee the universal right to social security. In fact, itdoes not guarantee any right besides archetypal political and civil rights. Thisrenders the Constitution virtually irrelevant in the fight against poverty. TheConstitution also omits the very important issue of gender and dignity. Insteadof being unequivocal on gender-based discrimination, the Constitution yields tothe social forces that disregarded women in the first place. Beyond normativestandards, the country lacks a proper system to implement the right of access tosocial security since most of what exists is a defective and irresponsive systemthat does not accurately articulate the problems. The universal right to socialsecurity is still a long way from effective recognition in Zambia.