Why America Rejected the Second Generation Rights.

[This edited article by Chanda Chisala was first presented to the Zambian President, Levy P. Mwanawasa in 2007, before publication that same year. The president subsequently expressed his opposition to adding these new “rights” to the Zambian constitution.]

After publishing my series of internet articles on “the Zambian Constitutional Debate,” in which I theorized that the root of the contentious constitutional debate is simply a matter of ideology (specifically Marxist ideology) trying to stealthily impose itself on a nation (Chisala, 2007), I was curious to see if someone else had already noticed this scheme. You always get more confidence that your theory is right when you have other people to corroborate your observations.

Although I did not find much support from Zambian commentators on this issue (virtually all the Zambian articles I found were, unfortunately, in favour of changing the Bill of Rights to include the social, economic and cultural rights), I was encouraged to discover that another nation, the United States of America, has in fact faced this same challenge before, and indeed some of its intellectuals did identify this surreptitious plot of some unrepentant Marxists to turn America into a socialist or communist state, legislatively, and to thus make the dream of individualism and free market enterprise practically illegal in America itself (in short, to forever banish the “American dream”). Fortunately, they failed to achieve this in America, but they are now trying to prey on some unsuspecting African nations by giving fallacious arguments to force constitutional socialism and Marxism on them.

The people who are fighting to have these social and economic rights included in our Bill of Rights are using the United Nations’ International Covenant on Economic, Social and Cultural Rights (ICESCR), that are also informally referred to as “second generation rights,” as the basis for their campaign. Their argument basically is that Zambia should put this into its constitution because progressive societies are going along this route of entrenching this UN covenant into their constitutions (Mwale, 2004).

When you ask them which “progressive societies” these are which have included the social and economic rights in the bill of rights of their constitutions, our friends struggle to find good examples. The one country that they always rush to is the Republic of South Africa. They obviously hope that many people will be impressed with this example since everyone in Zambia knows that South Africa is a highly developed economy (compared to Zambia); after all, almost all the nice goods (and shops) are from South Africa, right? Thus, when our NGOs go campaigning for this change in our Bill of Rights, they just tell the people, “if you want us to be as rich as South Africa, we must force our government to have the same kind of constitution that South Africa has, okay?”

South Africa indeed included the social, economic and cultural rights in their current constitution which was formed upon the change of government from the apartheid government to a majority black government. Other developed nations like the United States of America have never included these “rights” into their constitutions, but some of our people strongly feel it is better for us to emulate South Africa.

Firstly, I want to say that if we have to choose between South Africa and the USA as a political or economic role model, common sense should incline us to the latter. This is simply because South Africa is much younger than Zambia, politically, and surely common sense forbids that an older nation should choose a very young nation as its role model. South Africa is relatively economically developed, yes, but this does not mean that it has the right political (or even economic) philosophy or vision. The current South African government simply inherited that economy, just as Robert Mugabe’s government simply inherited a vibrant economy a few decades ago. Imagine the folly of following Mugabe’s policies a few years ago just because he had a great economy. I think it’s only right that a young nation is given time before seeing if its policies or ideals are worthy of emulation. It would be like emulating the business principles of a young person who has just inherited all his money from his father, just because he seems to be very rich!

Objectively, it is Zambia that should be South Africa’s role model and not the other way around. South Africa is so politically immature that it even has a party that seriously named itself “South African Communist Party” – yes, in this very day and age! Although one would expect that such a party would be a laughing stock in any modern society, the SACP is actually a very strong and highly respected party that is even part of the ruling alliance of South Africa today! It is not surprising that South Africa could make the terrible mistake of including “social and economic rights” in its Bill of Rights; after all, one of its main political parties is a communist party.

And neither is it surprising that one of the leading proponents of social and economic rights in Zambia, Father Peter Henriot of the Jesuit Centre for Theological Reflections (JCTR), publicly expressed strong admiration for the Marxist leader of South Africa’s SACP (Dr. Blade Nzimande) and indeed openly confessed that he agreed with all his policies and economic vision, which he described as “wisdom”. According to Henriot, the difference between Nzimande and himself is just a matter of “labels” (Henriot, 2006). And it is of course through the influence of people like Nzimande that South Africa sacrificed its future to the Marxist ideals of “social and economic rights”.

The United States of America, on the other hand, has not only never entertained the possibility of including these “rights” in its sacred constitution, it has even officially refused to ratify the United Nations ICESCR. No wonder this society continues to be the wealthiest and most prosperous nation on the earth. It is so intellectually alert, that no one can easily trap it into ratifying something that it would woefully regret, just because other nations are doing it.

As far back as the 1940’s, some American intellectuals recognized that the economic and social rights in the UN Universal Declaration (and subsequently and more specifically, in the draft ISCER) were just a sinister plot to turn America into a Marxist-socialist state, or at least to promote a philosophy that was antithetical to America’s conception of human rights as expressed in its own constitution.

Although many people and NGOs were trying to lobby the American government into submitting to this covenant, Frank Holman, the then president of the American Bar Association or ABA (which is like our own Law Association of Zambia) was the first to quickly observe that this was just a dangerous socialist agenda, designed to alter America’s way of life in a very fundamental way. He chided some members of the American public for not noticing that these new “human rights” were not human rights at all, and also warned that this was “a proposal for world-wide socialism to be imposed through the United Nations on the United States and on every other member nation” (Holman 1948: 985). How one wishes that our own LAZ was that perceptive and intellectually alert; instead, they have joined themselves with some groups that have absolutely no understanding of the human rights discourse, and whose height of intellectual debate consists solely of the fallacy of claiming to speak “for the people” (or indeed, “for the Lord” in some cases) in order to silence all dissent.

The ABA president would have none of that. Commenting particularly on these social and economic parts of the Universal Declaration, Holman wrote:

“These latter articles do not pretend to limit the powers of government, but on the contrary, impose so-called economic and social duties upon government, the fulfillment of which will require a planned economy and a control by government of individual action. This program, if adopted, will promote state socialism, if not communism, throughout the world” (Holman 1948: 1080).

Holman was not the only member of the ABA to notice this “backdoor communism.” There were many others, including William Fleming who, also writing against the inclusion of social and economic rights in the draft covenant of the UN, argued that “it is impossible not to recognize the heavy imprint of Eastern philosophy. As a matter of fact, Part III is nothing else but the perfect embodiment of the unadulterated welfare state and unmitigated socialism.” (Fleming 1951: 794). He also recognized that the so-called “right to work” would mean the end of free enterprise (ibid., 795). In short, he could see that this was an onslaught against true economic freedom, and an exaltation of socialism, if not communism, to a legally binding philosophy for the American government.

Due to the very influential stature of the American Bar Association, the American government recognized that these “rights” were indeed contrary to the spirit of free enterprise and true human rights so dearly valued in American society and they thus refused to officially endorse the document. Many years later, President Jimmy Carter came close to accepting these social and economic rights and even signed the ICESCR although senate defied him by refusing to ratify it.

But even Carter was not totally deceived by this Marxist plot; his advisors demonstrated that they understood the issue better than him and they could not allow him to fall for the ploy completely. It is reported that during the drafting of a speech on human rights that Carter was supposed to deliver in May 1977, his top speech writer, Griffin Smith, decided to remove a part on economic and social rights that had been written by his subordinate. Rejecting the use of the word “rights” to describe “needs” (which is what these so-called third generation rights really are), Smith wrote in a memo to the original drafter of the speech:

“I know the temptation is strong to define one’s pet project as a human right so that the president will appear to be endorsing it, but let’s keep human rights to mean human rights, and find another label for economic and social progress (Hartmann 2001: 408).”

Indeed, many Zambian NGO’s are involved in these “pet projects”, some of which are even admirable and helpful to the poor, but they should not try to deceive the public that whatever they are doing for the poor constitute their “human rights” that should even be included in the Bill of Rights. A need is not a right. Even though charity work is important, no one should be punished for failing to meet another person’s need; indeed, no one should be legally forced to do so.

During the Carter years, many liberal NGOs and other socialist individuals put more pressure on Senate to ratify the ICESCR. The Senate Foreign Relations Committee therefore decided to hold hearings to allow more debate on the issue, from the experts. Fortunately, there were still many influential American intellectuals who held to the views expressed in earlier decades by the president of the American Bar Association and others. They could still see that this was just a lethal socialist plan that would destroy America and they presented clearly devastating arguments against the case for ratification once and for all. Phyllis Schlafley’s written statement to the Committee, for example, perceptively argued that “…article 2 [of the ICESCR] could mean that the United States is making a legally binding commitment to legislate unlimited taxes on ourselves …” (1979: 110).

This is very instructive because there are a good number of working Zambians who have correctly held reservations against adopting these social and economic rights on that very basis (of unlimited taxes). A proponent of adoption of these so-called rights from Father Henriot’s JCTR disclosed in his paper that a friend of his working in the formal sector of Zambia had argued with him that these rights would just lead to uncontrollable increases in taxes (Mwale 2004). The writer was of course using this as an example of how ignorant some Zambians are concerning this issue, and yet it demonstrates that there are still some people in Zambia who are perceptive enough to instantly and intuitively recognize danger when they see it. If Americans themselves can fear that simply ratifying these “rights” can lead to “unlimited taxes on ourselves” (since government does not make any money of its own to fulfill such “rights”), how can Zambians not fear something worse by putting these in our very Bill of Rights?

My favorite testimony at these senate hearings, which accurately confirms my own identification of the specific ideological source of this proposal, came from Oscar Garibaldi who testified that the ICESCR

“…is largely the historical product of Marxist ideology … coupled with the non-Communist world’s postwar infatuation with various forms of democratic socialism. In other words, however worthy its general goals may look, this is largely a document of collectivist inspiration, alien in spirit and philosophy to the principles of a free economy….Second, viewed in the best possible light, this is a big government treaty which, by virtue of the principle of progressive implementation, would commit the United States to ever-increasing levels of welfare, an ever-increasing governmental control of the economy, and ever-increasing restrictions on individual initiative and freedom.” (1979: 323).

Our Zambian intellectuals argue that we have nothing to fear since the proposal uses the word “progressive” (as in, “progressive realization of …economic rights”) [Mwale, 2006]. American intellectuals like the one quoted above saw that this only meant a commitment to a progressively increasing destruction of the economy. How can anyone think that the word “progressive” changes anything metaphysically?

What is most impressive is that so many of these American citizens could clearly see the Marxist source of this proposal and they aggressively opposed it to save their economy and way of life from the destruction that has accompanied all Marxist economies, and to preserve the spirit of freedom envisaged by the founders of their great constitution.

In case someone is tempted to think that Americans refused to ratify this covenant simply because of their cold war paranoia, one should observe that America has refused to ratify the covenant up to this day and their reasons have not changed. The official position of the United States has remained consistent throughout: they have totally rejected these “economic and social rights”, recognizing them as not real human rights, but just simply “needs” disingenuously elevated to the level of rights in order to hoodwink people into accepting them without question:
This process of reinventing the concept of human rights to make it resemble more closely the ideological predilections of the U.S. Government reached a high point in a June 1988 statement by the Deputy Assistant Secretary of State for Human Rights and Humanitarian Affairs [Paula Dobriansky], in which she sought to dispel a number of “myths” about human rights, the first of which was that “‘economic and social rights’ constitute human rights” (Alston 1990: 374)
America’s official position still stands today: the proposition that these ‘economic and social rights’ constitute human rights is a myth.

The sharpest nail in the coffin for this UN covenant as far as America is concerned came from America’s first female ambassador to the United Nations, Jeane Kirkpatrick, who scathingly attacked these so-called rights, labeling them “a prayer to Santa Claus” (Kirkpatrick 1979). She thus sent a clear signal to the rest of the world (as UN Ambassador) that America would never be party to ratification of something that is clearly a socialist agenda designed to achieve nothing but the violation of the human rights of the more productive members of society by unfairly forcing on them the responsibility of meeting everyone else’s needs (like Santa Claus!).

The people of Zambia do not need to reinvent the wheel. We can learn from more intellectually developed societies why they have rejected these social and economic rights, not only on the constitutional level, but even on the simpler level of ratification of this UN covenant. Our former socialist president, Kenneth Kaunda, unfortunately ratified the UN covenant on social and economic rights (without allowing any dissent or debate, of course), and we even went further by putting them in our constitution, albeit not in the Bill of Rights. It would be a grave mistake to compound on these errors by pushing these suicidal commitments into the Bill of Rights itself (making them “justiciable”), so that government will be legally forced to implement them.

The only thing that has currently saved us from total destruction is that government is not legally forced to go this socialist way since it is not yet in the Bill of Rights. Ratifying the ICESCR was a mistake; it was like buying suicide pills. Putting these principles in the body of our constitution was like putting such suicide pills in our mouth. To put them in our very bill of rights will be to swallow these suicide pills and send them straight to the heart; it is to construct a self-imposed death sentence on our already fragile economy and nascent democracy. The foreign Marxist and “social democrat” donors who sponsor some of our local NGOs will have more reason to celebrate the “progress” of their pet project towards creating a socialist utopia in the world, but they will not be there when our children begin to pay for this myopic and fatal mistake.

Marxism, socialism, communism – misguided philosophies that put human desires (consumption) above human abilities (production) with the ostensible goal of achieving human “equality” – have always resulted in progressively increasing human rights abuses and deepening poverty whenever they were the guiding philosophy of any nation’s economic or political policies (in Zambia, it was called ‘Humanism’, and it also led to massive poverty and human rights abuses). Although all developed countries today permit a certain measure of socialism, there is none that has placed it at the point where it actually rules and guides overall economic practice. All of them are primarily, fundamentally and constitutionally free capitalist countries that treasure individual initiative above collective economic parasitism, which is why none of them can ever put this socialist contract in their Bill of Rights. Instead of emulating such nations, we want to follow a nation that was just recently born (South Africa), led by new politicians who have never been tested in the intellectual task of actually raising an economy from poverty to prosperity.

I therefore believe that including these social, economic and cultural rights in our Bill of Rights will be the single biggest political error committed by our nation in its entire political history. One can therefore only pray that God – or just common sense – will save us from actually going ahead with this colossal mistake.

REFERENCES:

Chisala, C (2007) The Zambian Constitutional Debate, parts 1 to 4, http://www.zambia.co.zm

(1979). International Human Rights Treaties. Committee on Foreign Relations. Washington DC, US GPO: 554.

Fleming, William (1951). “Danger to America: The Draft Covenant on Human Rights (Part I).” American Bar Association Journal 37(10): 739-742; 794-799.

Fleming, William (1951). “Danger to America: The Draft Covenant on Human Rights (Part II).” American Bar Association Journal 37(11): 816-820; 855-860.

Hartmann, Hauke (2001). “US Human Rights Policy under Carter and Reagan, 1977-1981.” Human Rights Quarterly 23(2): 402-430.

Henriot, Peter (2006). “Father, are you a Communist?” Zambian Post Newspaper April 2006.

Holman, Frank E. (1948). “An ‘International Bill of Rights’: Proposals Have Dangerous Implications for U.S.” American Bar Association Journal 34: 984-986; 1078-1081.

Holman, Frank E. (1949). “International Proposals Affecting So-Called Human Rights.” Law & Contemporary Problems 14: 479-489.

Kirkpatrick, Jeane (1979). “Dictatorships and Double Standards.” Commentary 68: 34-45.

Mwale, Simon (2004). “Zambia’s Economic, Social and Cultural Rights: Why should they be in the new constitution?” JCTR Paper.