INTRODUCTION
As a human right, the right to food, and its variants, protects people’s right to feed them in dignity, suggesting that enough food is available, people have the means to access it, and it is sufficient to meet an individual’s dietary needs. The right to food safeguards everyone’s right to be free of hunger, food insecurity, and malnutrition.[1] The right to food does not imply that governments have an obligation or a right to feed everyone who requests it. However, if people are denied access to food for reasons beyond their control, such as detention, war, or natural disasters, the right requires the government to intervene.
The International Covenant on Economic, Social, and Cultural Rights[2] calls for the use all available resources to gradually achieve the full realization of the right to adequate food, both nationally and internationally.[3] Globally, the discourse around the right to food continues to grow, and it focuses on the campaigns to intensify and promote food and nutrition security, a movement closer to the right to food for all has made strides which have resulted in increased political will by world leaders.[4]
On 23rd September 2021, at the UN Food Systems Summit, organised on the side-lines of United Nations General Assembly, President Hakainde Hichilema made a bold and strong statement, making the commitment that Zambia will end hunger by 2030. Further, during the President’s address to the National Assembly on 9th September 2022, the President amplified Zambia’s commitment to food and nutrition security. The interventions to achieve this will be guided by the Health, Food and Nutrition Programme under the Human and Social Development Pillar of the Eighth National Development Plan (2022-2026).[5]
On 9th September 2022, President Hakainde Hichilema, Speaking when delivering his maiden speech at the 42nd SADC Summit in Kinshasa, Democratic Republic of Congo, noted that Africa is facing food insecurity, like other parts of the world as a result of the Russia Ukraine conflict. He emphasised the need to address these challenges head on so that Zambia can accelerate processes to become food secure.[6]
THE BASIC INDICATORS ON THE RIGHT TO FOOD
According to Jean Ziegler, the Special Rapporteur on the Right to Food, the basic indicators on the right to food can be defined by three dimensions, which include availability, accessibility, acceptable quantity and quality of food.[7] While the nutrition indicator used to measure food security is malnutrition. Malnutrition manifests as acute malnutrition (wasting) or chronic malnutrition (stunting). The most common key indicators used to analyse food insecurity are; food consumption score; coping strategy index; expenditure; and nutrition.[8]
INTERNATIONAL AND REGIONAL INSTRUMENTS
International instruments right to food
The 1948 Universal Declaration of Human Rights (Article 25) recognises the right to food as part of the right to an adequate standard of living, and is also enshrined in the 1966 International Covenant on Economic, Social and Cultural Rights (Article 11).[9]The 2009 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights makes the right to food justiciable at the international level.[10] In 2012, the Food Assistance Convention was adopted, making it the first legally binding international treaty on food aid.
The right to food is also recognized in some international instruments as far back as the 1948 Genocide Convention (Article 2), the 1951 Convention relating to the Status of Refugees (Articles 20 and 23),[11] the 1989 Convention on the Rights of the Child (Articles 24(2)(c) and 27(3)), the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (Articles 12(2)), or the 2007 Convention on the Rights of Persons with Disabilities (Articles 25(f) and 28(1)).[12]
Regional instruments on the right to food
The right to food is also recognized in regional instruments, such as:
- the 1990 African Charter on the Rights and Welfare of the Child;
- the African Charter on Human and Peoples’ Rights, implicitly in the right to life (Article 4), right to health (Article 14), and right to economic, social and cultural development (Article 22), according to the African Commission on Human and Peoples’ Rights decision in SERAC v Nigeria;[13]
- the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa or “Maputo Protocol” (Article 15);
- There are also such instruments in many national constitutions.[14]
Non-legally binding instruments international human rights instruments
There are several non-legally binding international human rights instruments relevant to the right to food. They include recommendations, guidelines, resolutions or declarations. The most detailed is the 2004 Right to Food Guidelines. They are a practical tool to help implement the right to adequate food.[15] The Right to Food Guidelines are not legally binding but draw upon international law and are a set of recommendations States have chosen on how to implement their obligations under Article 11 of the International Covenant on Economic, Social and Cultural Rights.[16] Finally, the preamble to the 1945 Constitution of the United Nations Food and Agriculture Organization provides that:[17]
the Nations accepting this Constitution, being determined to promote the common welfare by furthering separate and collective action on their part for the purpose of: raising levels of nutrition and standards of living … and thus … ensuring humanity’s freedom from hunger….
Obligations under international law
State obligations related to the right to food are well-established under international law.[18]By signing the International Covenant on Economic, Social and Cultural Rights (ICESCR) states agreed to take steps to the maximum of their available resources to achieve progressively the full realization of the right to adequate food. They also acknowledge the essential role of international cooperation and assistance in this context.[19] This obligation was reaffirmed by the Committee on Economic, Social and Cultural Rights (CESCR).[20] Signatories to the Right to Food Guidelines also committed to implementing the right to food at a national level.
In General Comment No. 12, the CESCR interpreted the states’ obligation as being of three types: the obligation to respect, protect and to fulfil:[21]
The implementation of the right to food standards at national level has consequences for national constitutions, laws, courts, institutions, policies and programmes, and for various food security topics, such as fishing, land, focus on vulnerable groups, and access to resources.[22]
National strategies on the progressive realization of the right to food should fulfil four functions:
- define the obligations corresponding to the right to adequate food, whether these are the obligations of government or those of private actors;
- improve the coordination between the different branches of government whose activities and programs may affect the realization of the right to food;
- set targets, ideally associated with measurable indicators, defining the timeframe within which particular objectives should be achieved;
- provide for a mechanism ensuring that the effect of new legislative initiatives or policies on the right[clarification needed].[23]
Best practices from other jurisdictions on the right to food.
Bangladesh
The right to food is enshrined in the constitution, Article 15 (Provision of basic necessities):
“It shall be a fundamental responsibility of the State to attain, through planned economic growth, a constant increase of productive forces and a steady improvement of the material and cultural standard of living of the people, with a view to securing to its citizens… the provision of the basic necessities of life, including food, clothing, shelter…”[24]
Brazil
The right to food is enshrined in the constitution, Article 227 (Right to food for children and teenagers):
“It is the duty of the family, of society, and of the State to ensure children and adolescents, with absolute priority, the right to life, health, food, education, leisure, professional training, culture, dignity, respect, freedom, and family and community life, in addition to safeguarding them against all forms of negligence, discrimination, exploitation, violence, cruelty, and oppression.”[25]
In 2003, the Fome Zero (Zero Hunger) government program was introduced by president Lula da Silva, with the objective to eradicate hunger and extreme poverty in Brazil. In 2003, the Special Rapporteur led a country mission to Brazil.[26] In 2006, Brazil adopted a framework law on the right to food.[27] Brazil has included the topic of food sovereignty in framework law, though its status is sometimes controversial: Law No. 11,346, 2006 Establishing the National Food and Nutrition Security System (SISAN); Decree No. 6273, establishing the Inter ministerial Chamber for Food and Nutritional Security, 2007.[28]
In 2007, Brazil’s National Rapporteur on the Right to Food, Water, and Rural Land filed a successful class action on behalf of favela residents.[29]
In 2010, the Brazilian House of Representatives voted a Constitutional amendment on the right to food.[30] In 2010, the Special Rapporteur led a country mission to Brazil.[31] In 2012, the Special Rapporteur, De Schutter, pointed to the example of Brazil to highlight the effectiveness of multi-year national framework laws on the right to food.[32]
Guatemala
The right to food is enshrined in the constitution, Article 51 (Protection of Minors and the Elderly):
“The State will protect the physical, mental and moral health of Minors and the Elderly. It will guarantee them their right to food, public health, education, security and social insurance.”[33] And Article 99 (Feeding and nutrition):
“The State will see to it that the food and the nutrition of the population meet the minimum health requirements. The specialized actions among themselves or with international organizations dedicated to public health to achieve an effective national food delivery system.”[34]
In 2005, Guatemala adopted a framework law on the right to food.[35]Guatemala has included the topic of food sovereignty in framework law, though its status is sometimes controversial: Law on National Food and Nutrition Security System, Decree No. 32-2005, 2005. Agreement No 75/06, Regulation to the Law on National System on Food and Nutritional Security, 2006.[36]
ZAMBIA’S POLICY AND PRACTICE ON FOOD SECURITY
The constitution[37] does not provide explicit provisions on the right to food. However, there are various policies and programmes aimed at facilitating the right to food and the attainment of food security in Zambia.
The Food and Agriculture Organisation has identified the Zambia National Agricultural Policy (ZNAP)[38] as a cross cutting policy whose vision was to develop a competitive and diversified agricultural sector driven by equitable and sustainable agricultural development recognising the roles of the various agriculture stakeholders to establish strong partnerships with agribusiness, civil society organizations, and the development partners. The overall coordination and oversight of the implementation of the revised ZNAP 2012-2030 has been provided by the Agricultural Sector Advisory Group composed of all key stakeholders in the agricultural sector while the Second National Agricultural Policy (SNAP) provides policy guidelines for the development of the agriculture sector in Zambia. The document was formulated to take into account the current trends and issues that have emerged in the agriculture sector as well as to address the challenges that were observed during implementation of the 2004-2015 National Agricultural Policy (NAP). It encompasses key facets of the agriculture sector, namely: food and nutritional security, agricultural production and productivity, agricultural diversification, agricultural research and extension services, sustainable resource use, promotion of irrigation, agro-processing and value addition, agricultural marketing and trade, livestock and fisheries development. The institutional and legislative framework, decentralization, private sector participation, support to cooperatives and other farmer organisations and crosscutting issues such as gender mainstreaming, HIV and AIDS, and mitigation of climate change are also addressed by the policy.
The policy establishes the following objectives: 1) to increase agricultural production and productivity; 2) to increase effectiveness and efficiency of agricultural Research and Development (R&D); 3) to strengthen the capacities of agricultural training institutions; 4) to improve the efficiency of agricultural markets for inputs and outputs; 5) to promote availability of and accessibility to agricultural finance credit facilities and insurance; 6) to increase private sector participation in agricultural development; 7) to improve food and nutrition security; 8) to promote the sustainable management and use of natural resources; 9) to mainstream environment and climate change in the agriculture sector; 10) to promote the mainstreaming of gender, HIV and AIDS, and governance issues in agriculture.
The government has continued to emphasise that agriculture is guided by the National Agricultural Policy (NAP), which undergoes periodic reviews to ensure its relevance to prevailing climatic, social and economic conditions in the country. The Ministry responsible for Agriculture has acknowledged that a number of pieces of legislations are outdated, and will be initiating a process to review some of pieces of legislation which are outdated. This is so as to maximize the sectors development. Consequently, the 8th National development Plan [39]that will serve as the anchor for basis for the implementation of the NAP.
MAJOR OBSERVABLE GAP AND CHALLENGE IN THE LEGAL AND POLICY FRAMEWORK
Although Zambia has ratified key international human rights instruments, the law does not provide for automatic application of ratified instruments at national level. It does however, has an Act of Parliament[40] which was enacted in 2016 that provides for the ratification of international agreements and the domestication process; and provide for matters connected with, or incidental to, the foregoing.
The right to food which firmly, however, falls in the category of economic, social and cultural rights, which at national level are not part of the Bill of Rights and cannot be enforced. The Mvunga and the Mwanakatwe Constitutional Review Commissions addressed this subject addresses and recognised the critical role that economic, social and cultural rights can play in achieving political and civil rights. However, both Commissions felt that due to the formidable constraints in their realisation, these rights could not be made justiciable because the Constitution (1996) relegated economic, social and cultural rights to the Chapter dealing with the directive principles of the state policy and remained non-justiciable.[41] However, there was a different reasoning under the Mung’omba Constitution Review Commission, which stated that;
“Protection of any right has a cost, and the country should be prepared to spend resources in order to guarantee its citizens a minimum of economic, social and cultural rights. The fact that country is poor does not constitute a legitimate excuses for it to avoid striving to ensure that its citizens enjoy economic, social and cultural rights to adequate food….”[42]
The Constitution[43]as amended in 2016 did not include the right to food and other economic, social and cultural rights in the Bill of rights. However, the referendum question did provide an opportunity for inclusion of the rights to food of acceptable standard among the social economic, social and cultural rights, the referendum question that was put to the electorate was: ‘Do you agree to the amendment to the constitution to enhance the Bill of Rights contained in part III of the constitution of Zambia and to repeal and replace Article 79 of the Constitution of Zambia?’[44] The proposed Bill of Rights included economic, social cultural and environmental rights as well as ‘further and special rights’. Among the economic and, social and cultural rights were the rights to healthcare, decent housing, food of an acceptable standard, clean water, education, social protection, employment consumer rights and a clean and healthy environment. The further special rights included rights for persons with disabilities. The electorates in considering the referendum question had the choice of voting “yes” or “no”, did vote “no” against the amendment of the Bill of rights to also include social, economic and cultural rights. The major consideration is the consensus building that is cardinal in the constitutional making process in Zambia.
CONCLUSION AND RECOMMENDATION
There are a number of lessons that Zambia can draw from countries such as Guatemala, Brazil and Bangladesh that have provided for the right to food in their laws. Given that Zambia does not have specific legislation that explicitly deals with the right to food, it is recommended that legislation be developed to facilitate the realisation of the right to food. This subject matter can also be considered during the Constitutional review process which will give the country an opportunity to revisit and possibly amend the Bill of Rights to include the class of rights such as the economic, social and cultural rights, and specifically the right to food. Further, Zambia must domestic international human rights instruments that provide for the right to an adequate standard of living which includes the right to food.
REFERENCES
[1] Ziegler, Jean (2012), Right to Food. Website of the former Special Rapporteur, archived from the original on 18 January 2012. Accessed 10.10.22
[2] Special Rapporteur on the Right to Food (2012a), Website of the United Nations Special Rapporteur on the Right to Food, Olivier De Schutter, retrieved 24 May 2012. Accessed 10.10.22
[3] International Covenant on Economic, Social and Cultural Rights 1966: article 2(1), 11(1) and 23.
[4]Ziegler 2012: “What is the right to food?” Committee on Economic, Social and Cultural Rights (1999), General Comment No. 12: The right to adequate food (Art. 11) (E/C.12/1999/5), United Nations, archived from the original on 5 June 2012. Accessed on 10.10,22
[5] Cabinet circular minute No. 18cm of 2022
[6]https://www.sadc.int/latest-news/communique-42nd ordinary-summit-SADC-heads-state-and -government
[7] Ziegler 2012: “What is the right to food?” Committee on Economic, Social and Cultural Rights (1999), General Comment No. 12: The right to adequate food (Art. 11) (E/C.12/1999/5), United Nations, archived from the original on 5 June 2012. Accessed on 10.10,22
[8] These are food security indicators used to analyse house hold food security by FAO
[9] Special Rapporteur on the Right to Food (2012a), Website of the United Nations Special Rapporteur on the Right to Food, Olivier De Schutter, retrieved 24 May 2012. Accessed. 13.10.22
[10] Special Rapporteur on the Right to Food (2010a), Countries tackling hunger with a right to food approach. Significant progress in implementing the right to food at national scale in Africa, Latin America and South Asia. Briefing Note 01. (PDF), archived (PDF) from the original on 27 September 2018.Accessed 10.10.22
[11]Ahluwalia, Pooja (2004), “The Implementation of the Right to Food at the National Level: A Critical Examination of the Indian Campaign on the Right to Food as an Effective Operationalization of Article 11 of ICESCR” (PDF), Centre for Human Rights and Global Justice Working Paper No. 8, 2004., New York: NYU School of Law, archived from the original (PDF) on 16 October 2011. Accessed 12.10.22
[12]Special Rapporteur on the Right to Food (2012a), Website of the United Nations Special Rapporteur on the Right to Food, Olivier De Schutter, retrieved 24 May 2012.Accessed. 10.10.22
[13] African Commission on Human and Peoples’ Rights, ACHPR decision in case SERAC v. Nigeria, archived from the original on 20 February 2012.
[14] special Rapporteur on the Right to Food (2012a), Website of the United Nations Special Rapporteur on the Right to Food, Olivier De Schutter, retrieved 24 May 2012.11.10.22
[15] special Rapporteur on the Right to Food (2012a), Website of the United Nations Special Rapporteur on the Right to Food, Olivier De Schutter, retrieved 24 May 2012.11.10.22
[16] special Rapporteur on the Right to Food (2012a), Website of the United Nations Special Rapporteur on the Right to Food, Olivier De Schutter, retrieved 24 May 2012.11.10.22
[17] Ahluwalia, Pooja (2004), “The Implementation of the Right to Food at the National Level: A Critical Examination of the Indian Campaign on the Right to Food as an Effective Operationalization of Article 11 of ICESCR” (PDF), Centre for Human Rights and Global Justice Working Paper No. 8, 2004., New York: NYU School of Law, archived from the original (PDF) on 16 October 2011. Accessed 12.10.22
[18] Special Rapporteur on the Right to Food (2012a), Website of the United Nations Special Rapporteur on the Right to Food, Olivier De Schutter, retrieved 24 May 2012. 11.10.22
[19] International Covenant on Economic, Social and Cultural Rights 1966: article 2(1), 11(1) and 23; Ziegler 2012: “What is the right to food?”
[20] Committee on Economic, Social and Cultural Rights 1999.
[21] Committee on Economic, Social and Cultural Rights 1999
[22] Special Rapporteur on the Right to Food 2012a: “Right to Food.”
[23] Special Rapporteur on the Right to Food 2012a: “Right to Food.”
[24] Food and Agriculture Organization (1998), “The right to food in national constitutions”, The Right to Food in Theory and Practice, Food and Agriculture Organization of the United Nations, ISBN 92-5-104177-6.
[25] Food and Agriculture Organization (1998), “The right to food in national constitutions”, The Right to Food in Theory and Practice, Food and Agriculture Organization of the United Nations, ISBN 92-5-104177-6.
[26] Special Rapporteur on the Right to Food (2003), Report by the Special Rapporteur on the right to food, Mr. Jean Ziegler, Addendum Mission to Brazil (E/CN.4/2003/54/Add.1) (PDF), UN Commission on Human Rights, archived from the original (PDF) on 4 March 2012. Accessed 10.10.22
[27] Special Rapporteur on the Right to Food (2010a), Countries tackling hunger with a right to food approach. Significant progress in implementing the right to food at national scale in Africa, Latin America and South Asia. Briefing Note 01. (PDF), archived (PDF) from the original on 27 September 2018.Accessed 12.10.22
[28] Knuth, Lidija (2011), Constitutional and Legal Protection of the Right to Food around the World (PDF), Margret Vidar, Rome: Food and Agriculture Organization of the United Nations, archived (PDF) from the original on 14 May 2012.Accessed 13.10.22
[29] Food and Agriculture Organization (1998), “The right to food in national constitutions”, The Right to Food in Theory and Practice, Food and Agriculture Organization of the United Nations, ISBN 92-5-104177-6.
[30]Special Rapporteur on the Right to Food (2010a), Countries tackling hunger with a right to food approach. Significant progress in implementing the right to food at national scale in Africa, Latin America and South Asia. Briefing Note 01. (PDF), archived (PDF) from the original on 27 September 2018.
[31] Special Rapporteur on the Right to Food (19 February 2009), Report of the Special Rapporteur on the right to food, Olivier De Schutter, Addendum Mission to Brazil (A/HRC/13/33/Add.6) (PDF), UN Human Rights Council, archived (PDF) from the original on 3 October 2018.
[32]De Schutter, Olivier (2012), ‘Unfinished progress’ – UN expert examines food systems in emerging countries (PDF), Geneva: UN Office of the High Commissioner for Human Rights, archived (PDF) from the original on 29 September 2018.
[33] Food and Agriculture Organization (1998), “The right to food in national constitutions”, The Right to Food in Theory and Practice, Food and Agriculture Organization of the United Nations, ISBN 92-5-104177-6.
[34] Food and Agriculture Organization (1998), “The right to food in national constitutions”, The Right to Food in Theory and Practice, Food and Agriculture Organization of the United Nations, ISBN 92-5-104177-6.
[35] Knuth, Lidija (2011), Constitutional and Legal Protection of the Right to Food around the World (PDF), Margret Vidar, Rome: Food and Agriculture Organization of the United Nations, archived (PDF) from the original on 14 May 2012.
[36]Knuth, Lidija (2011), Constitutional and Legal Protection of the Right to Food around the World (PDF), Margret Vidar, Rome: Food and Agriculture Organization of the United Nations, archived (PDF) from the original on 14 May 2012.
[37] The Constitution of Zambia, Act No.1
[38] National Agricultural Policy (ZNAP) 2012-2030
[39] The Eighth National Development Plan (8NDP) sets out Zambia’s strategic direction, development priorities and implementation strategies for the Country.
[40] Ratification of International Agreements Act, 2016.
[41] Joyce-Shezongo Macmillan, A Review by AFriMap and the Open Society Initiative for Southern Africa MAR, 2013.Open Society Foundation. P.5
[42] Joyce-Shezongo Macmillan, A Review by AFriMap and the Open Society Initiative for Southern Africa MAR, 2013.Open Society Foundation. P.5
[43] Act No.2 of 2016
[44]The referendum question on the Bill of Rights Amendment clause was held at the same time as the presidential and Parliamentary elections. The drafting of the constitution which commenced in 2013 was released on 23 October 2014 following sustained public pressure.