This thesis investigates the extent to which the legal framework in the EAC comply with international law and regional instruments applicable in enforcement of the right to equal treatment of migrant workers and nationals in the area of social security. The thesis uses Kenya and Tanzania as case studies. The research questions that guided the study are: Do the EAC social security legal frameworks comply with and promote the international and regional standards of equality of treatment in social security for migrant workers? Which specific conditions existing in both Kenya and Tanzania that affect the rights to equal treatment in social security for migrant workers? What model fits EAC context for implementation of the right to equal treatment in social security for migrant workers? The methods used were doctrinal legal scholarship that applies normative analysis of legal content; the human rights research methodology as emerging discipline that examines the impact of international human rights treaties on domestic jurisdictions; comparative legal analysis and some empirical methods. The results show that legal framework of EAC countries and the Community have inefficient compliance with international and regional instruments relating to equal protection migrant workers and nationals in social security. The EAC law and international norms lack direct and effective application in national jurisdictions of Partner States and these cause inefficient compliance with international standards in social security. The thesis recommends, among other, adoption of strong supranational legislation that permits EAC legislation and ratified international instruments to directly and effectively apply in national jurisdictions of all EAC Member States where national laws appear devoid of remedy. Also, a clear policy is required to compel all Partner States to ratify all international instruments impacting on EAC Treaty objectives such as observance of equal treatment, human rights, social justice, and rule of law. A common strategy for effective domestication of international treaties and facilitation of harmonisation of social security laws is recommended so as to realise the objectives of the Common Market. Finally, possible model Agreement on social security for equal treatment of migrant workers is recommended for EAC countries to emulate.

Equality of treatment in social security: case of migrant workers in the east african community

The paper examines the structure of selection that determines migrants’ welfare rights. Using illustrations from the UK, it confirms that migrants’ welfare rights are stratified by, and dependent on, immigration status. It describes the outcome of this structure and shows why welfare policies need to reclaim independence from immigration policies to which they have become tied. Using terms from Walzer (1983), an argument is made for ‘autonomy’ in these different ‘spheres’.
An alternative approach is suggested in which access to welfare provisions for migrants is made regardless of immigration status and is based instead on equal treatment and non-discrimination between migrants and nationals of the receiving country. Nationals are seen to be migrants’ comparators, and unequal treatment between them constitutes discrimination. Alternative approaches to migrants’ welfare include reliance on universal international human rights law, and approaches that take into account more radical, substantive equality values than equal treatment. We argue, however, that amongst the advantages of an equal treatment policy are the rights retained by national governments to exercise sovereignty in determining the shape of their welfare provisions whilst also engaging international law on human rights.

The Ethics of Welfare Provision for Migrants: A Case for Equal Treatment and the Repositioning of Welfare

Disability is a universally difficult concept to define and assess for social assistance and social insurance purposes and these benefits have proven difficult to administer internationally because of ambiguities present in the process of determining the employability of people with physical impairments. In post-apartheid South Africa, disability grants (DGs) have proved especially difficult to regulate because of the added complexities of high levels of structural unemployment and poverty, an HIV epidemic and a social security system which does not cater adequately for all groups in need of support. The paper identifies three periods in the state’s attempts to improve DG administration through legislative and regulatory measures since 1990: 1) a period of extending access and overcoming administrative barriers, supported by a socio-economic rights discourse; 2) a period of growth and generous access, resulting in growing concern about over-generosity and fiscal sustainability; 3) a period of action or ‘rationalisation’ in which the state places new limits on access to the grants, leading to decline in the number of social grant recipients. Common to all three periods are numerous and ongoing problems in the disability assessment process. These exist because disability is a complex, multi-dimensional concept, which is difficult and expensive to properly assess, especially in a context of high demand and significant resource limitations within the healthcare system.

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Regulating access to the disability grant in South Africa, 1990-2013 (WP 332)

One way to describe the role of the social sciences (international relations included) is by relating to its function of rendering the social world transparent. This is a major conception of moral significance. The social world is a world of moral subjects. To render this world of moral subjects transparent involves exposing the inner states of the human mind. Moreover, according to the moral principle of reciprocity, those who make others transparent should be also transparent themselves. Furthermore, as facts do not order themselves objectively into parsimonious theory, the social scientist requires an extra-theoretical mechanism to classify and filter out data on the way to constructing theory. This extra-mechanism comprises the scientist's a priori assumptions of normative, ontological, and epistemological types: a priori assumptions that constitute the inner states of the theoretician's mind and necessarily precede theory. It is argued here that according to the moral and social principle of reciprocity, theoreticians have an individual and communal moral obligation to ensure that theory and theorising are transparent; an obligation attainable and preceded by strong individual and communal reflexivity. The extra-theoretical mechanism, and especially the ideological inclinations and normative convictions of theoreticians that allows parsimonious theory to be constructed from unbounded social complexity, should be made visible to the public.

Theoreticians' obligation of transparency: when parsimony, reflexivity, transparency and reciprocity meet

This paper provides a critical analysis of the workfare schemes introduced by the coalition government. Workfare is presented as the product of neoliberal ideologies that have introduced notions of conditions and reciprocity to the realisation of traditionally entitlement-based rights. The history of the welfare state is assessed from a politicaleconomic perspective. It is suggested that the rationale behind the schemes is fuelled by political and corporate motivations, which effectively subordinate the importance of human rights. This new social contract is explored from different philosophical perspectives of economic and social rights. Evidence of corporate and political reactions to social pressure suggest that civil society can be effective in discouraging decisions that pose a threat to human rights standards. The compatibility of workfare schemes with a normative understanding of specific rights is assessed. The study concludes that workfare constitutes a serious threat to human rights, signifying the erosion of the British welfare state, and hence basic welfare entitlements. There is a strong argument that workfare is a modern form of state-sanctioned forced labour.

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The Social and Political Significance of Workfare in the United Kingdom A Normative Human Rights Critique

The Right to Social Security - Current Challenges in International Perspective.- The Human Right to Social Security: Some Challenges.- The Right to Social Security and Implications for Law, Policy and Practice.- Social Security Reforms and the Right to Social Security.- The Judicial Enforcement of Social Security Rights in South Africa.- Social Security - International Standards and the Right to Social Security.- Evaluating the ILO's Approach to Standard-Setting and Monitoring in the Field of Social Security.- Social Security for Women Workers in the Informal Economy.- Exclusion of Vulnerable Groups from Equal Access to Social Security.- Social Security Systems and the Neo-Liberal Challenge.- Evaluating Reforms in Social Security Protection.- Summary of Discussion.

Eibe H. Riedel

Papers

Social security as a human right : drafting a general comment on article 9 ICESCR - some challengers