Members File Amicus in Ugandan Case on the Right to Food in the Context of the Pandemic
This August, several ESCR-Net members of the Strategic Litigation Working Group submitted an amicus curiae brief (in English) at the Court of Appeal of Uganda concerning the right to food in the context of the COVID-19 pandemic. The underlying case challenging the government’s response to food rights during the current crisis is being brought by the Center for Food and Adequate Living Rights (CEFROHT). Amici included the Center for Economic and Social Rights (CESR), FIAN International, Human Rights Law Network (HRLN), Initiative for Social and Economic Rights (ISER), and Pro Public.
As detailed in the amicus, established international, regional, and comparative right to food standards inform and reinforce the Ugandan State’s human rights duties to respond to the novel coronavirus (COVID-19) pandemic by:
- recognizing and enforcing the right to food within the domestic legal order;
- appropriately providing for all necessary food distribution during the pandemic;
- establishing and maintaining food reserves;
- ensuring economic accessibility of food and food price stabilization;
- ensuring food safety; and
- utilizing maximum available resources in the face of the food emergency.
As discussed in the amicus, numerous sources of law and interpretation establish the right to food in the universal, regional, and domestic legal contexts. These sources delineate core features of right to food, contemplating principles such as adequacy, availability, accessibility, and sustainability, as well as justiciable state duties to respect, protect, and fulfill the right. Many sources also provide specific guidance relevant to the recognition of the right to food within the domestic legal order, to food distribution, to food reserves, to food price regulation, to food safety, and to the utilization of maximum available resources in the context of the COVID-19 pandemic.
Though paragraph XXII on food security and nutrition in the Ugandan Constitution, in the section on National Objectives and Directive Principles of State Policy, includes that “….the State takes steps to encourage people to grow and store adequate food, establish national food reserves, and promote proper nutrition through education and other means, in order to build a healthy state,” current national jurisprudence in Uganda does not expressly recognize a constitutional right to food. International human rights law requires States to take the steps necessary to render those rights effective in their domestic legal order, including the right to food. Comparative constitutional law examples detailed in the amicus demonstrate how courts have recognized the right to food this in different jurisdictions, including in reference to constitutional directive principles and/or in the absence of express textual guarantees.
As discussed in the amicus, international right to food standards apply to the Ugandan government’s food distribution efforts and planning in response to the COVID-19 pandemic. In emergencies, States have the obligation to protect and provide the right to food to those incapable of doing so. International standards also establish the need for States to maintain food reserves in order to prevent food insecurity during times of heightened need—such as during the COVID-19 pandemic—and to actively promote related measures, such as food price stabilization. For example, under the African human rights system standards, States must take measures to ensure that surplus food production is safely stored to guard against famine, drought, and other hardships. States have a further duty to ensure “physical and economic access at all times to adequate food or means for its procurement” (United Nations Committee on Economic, Social and Cultural Rights (UN CESCR), General Comment (GC) 12, par. 6), an obligation that necessarily entails measures to maintain food affordability and price stability. Under African human rights system standards, States are similarly required to ensure the economic accessibility of food, which implies that personal or household financial costs associated with the acquisition of food for an adequate diet should be at a level such that the attainment and satisfaction of other basic needs are not threatened or compromised. Furthermore, UN CESCR GC 12 also details the State duty to ensure that food is free from adverse substances through establishing requirements for food safety and for a range of protective measures by both public and private means. The amicus also draws from other international standards, such as the UN Declaration on the Rights of Peasants, as well as various guidelines from the UN Food and Agriculture Organization, among other sources.
Finally, the amicus details how Uganda, as a party to International Covenant on Economic, Social and Cultural Rights, is obligated, under Article 2(1)(a) to “take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”
In network members’ application to be admitted as amicus in the case, counsel ISER affirmed, “[t]he Applicants’ participation will contribute to novelty on the law relating to the right to food, and its cogent submission will assist the Court in arriving at a just and fair decision in the pending suit as well as contribute further to developing jurisprudence on the subject.”