SECURING SOCIO‐ECONOMIC RIGHTS in SOUTHERN AFRICA: Learning from Practice – Improving Strategy

SECURING SOCIO‐ECONOMIC RIGHTS IN SOUTHERN AFRICA: Learning from practice – improving strategy

Key points from the plenary sessions of a conference held in Cape Town 31 August–2 September 2009

Norwegian Centre for Human Rights, University of Oslo In association with the Legal Resources Centre and PLAAS [Institute for Poverty, Land and Agrarian Studies, University of the Western Cape]

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

Executive summary In 1998, the Norwegian Centre for Human Rights (NCHR) at the University of Oslo, through the Royal Norwegian Embassy, started funding programmes to advance socio‐economic rights (SER) in South Africa. In 2009, the Embassy announced that the emphasis of its funding would change to suit a new set of strategic imperatives, in line with its evolving relations with the South African government. A 2½ day conference was held for NCHR partners and external resource persons from South Africa and other African countries to examine what progress had been made on SER through litigation, lobbying and advocacy, social mobilisation, and service provision activities. Participants included social movement activists, non‐governmental organisation (NGO) staff, academics and government officials. The first two days concentrated on the SER situation in South Africa. A number of inputs were presented in plenary for discussion: • SER and their impact on private law (Sandy Liebenberg, University of Stellebosch); • Social movements and the realisation of SER (Sbu Sikode, Abahlali baseMjondolo); • Social movements, NGO struggles and rights strategies (Steve Robbins, University of Stellenbosch); • Evaluating the effectiveness of SER interventions (Malcolm Langford, NCHR; Advocate Geoff Budlender; and Mark Abrahams, University of Cape Town).

Participants had a set of parallel small group discussions on other key issues of SER concern: water; environment; land and livelihoods; political participation; women’s rights; the challenge of protecting migrants’ rights and overcoming xenophobia; urban housing and security of tenure; and lessons from the case of Joe Slovo informal settlement in Cape Town. On the third day, the focus fell on SER in the broader regional context: • The Central Kalahari Game Reserve case (Alice Mogoe, Ditshwanelo – the Botswana Centre for Human Rights); • Land reform in Mozambique (Lourenco Duvane, ORAM, Mozambique); • The situation in Uganda (Christopher Mbazira, Community Law Centre, Uganda); • The International Center for Transitional Justice’s activities in the region (Piers Pigou, ICTJ); and • The South African government and international human rights instruments (Pitso Montwedi, South African Department of International Relations and Cooperation).

Broad conclusions of the meeting were as follows: • Improving access to SER interventions depends on deepening democracy; reducing poverty and inequality; and ensuring that the rights of migrants and refugees are protected. • Responsible and accountable government is necessary to provide an appropriate legal and policy framework; ensure adequate implementation capacity; and develop strong and credible regional institutions. • Vibrant civil society is necessary to provide ‘voice’ in a way that ensures equal participation for all; engage in social mobilisation; lobby and advocate; influence policy in association with academics and NGOs; and litigate where necessary. • Engagement between civil society and government may take a range of forms, from dialogue to negotiation to civil disobedience. Some see violent protest as a legitimate strategy of last resort to deal with intransigent state institutions; others see it is something which narrows democratic space. If the state responds to violence, it is effectively rewarding violent behaviour.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

Contents Opening ...... 1 Session 1: How far have we come on socio‐economic rights? ...... 1 Socio‐economic rights and their impact on private law ...... 1 Social movements and the realisation of socio‐economic rights ...... 5 Social movements, NGO struggles and rights strategies ...... 7 Session 2: Socio‐economic rights interventions: How do we measure ourselves? ...... 9 Measuring progress towards socio‐economic rights ...... 9 Comment: Measuring SER in South Africa ...... 12 How we measure, what we measure: Challenges, choices and obligations ...... 13 Comments and questions ...... 15 Session 3 & 4: Working groups I and plenary report‐backs ...... 17 Right to water and environmental rights group ...... 17 Land and livelihood rights in rural areas group ...... 18 Political participation group ...... 19 Session 5 & 6: Working groups II and plenary report‐backs ...... 20 Women’s rights group ...... 20 Migrants’ rights group ...... 21 Urban housing and security of tenure group ...... 22 Session 7: Case study review and plenary report backs ...... 23 Joe Slovo case study group ...... 23 Integrating migrants and overcoming xenophobia group ...... 25 Session 8: SER in the SADC and African region – forging linkages ...... 26 The Central Kalahari Game Reserve case ...... 26 Land reform in Mozambique ...... 28 The situation in Uganda ...... 30 Support to human rights commissions in Africa ...... 30 The International Center for Transitional Justice’s activities in the region ...... 31 The South African government and international human rights instruments ...... 32 Closing session ...... 33 Workshop review ...... 33 Closing ...... 35 Appendix: Workshop participants ...... 36

Acronyms and abbreviations APF Anti‐Privatisation Forum ARVs anti‐retrovirals CALS Centre for Applied Legal Studies, University of the Witwatersrand CBOs community‐based organisations CKGR Central Kalahari Game Reserve ESTA Extension of Security of Tenure Act LRC Legal Resources Centre NCHR Norwegian Centre for Human Rights, University of Oslo NGOs non‐governmental organisations PIE Prevention of Illegal Evictions from and the Unlawful Occupation of Land Act PLAAS Institute for Poverty, Land and Agrarian Studies, University of the Western Cape RAPCAN Resources Aimed and Preventing Child Abuse and Neglect SADC Southern African Development Community SAHRC South African Human Rights Commission SCA Supreme Court of Appeal SER socio‐economic rights TAC Treatment Action Campaign

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

DAY ONE

Opening May‐Elin Stener, Deputy Royal Norwegian Ambassador The Royal Norwegian Embassy has supported programmes of a socio‐economic rights kind since 1998, with a particularly strong focus on this area in the last five years. This programme will end in 2009 in line with a general transformation of Norway’s relations with South Africa. Democracy has developed over the last 15 years, and we now see our relationship more as one of equals rather than as a donor‐recipient relationship. From now on the main focus of Embassy funding will be on what we can do internationally with South Africa. We are in discussion with the Department of International Relations and Cooperation around the possibility of an ongoing human rights dialogue between our countries and hope those present will be part of such a dialogue. Our future priorities are likely to be environment, climate change, gender, resource management, energy, good governance, peace and reconciliation from a regional point of view.

Session 1: How far have we come on socioeconomic rights?

Socioeconomic rights and their impact on private law Sandy Liebenberg, Faculty of Law, Stellenbosch University There is a complex relationship between law and the advancement of social justice. Much of my research has focused on how socio‐economic rights (SER) can stimulate fundamental changes to legal concepts, institutions and rules to make them more responsive to initiatives aimed at promoting a more just social ordering in South Africa. One area of my research is concerned with the way law allocates the distribution of resources to meet various needs between public and private actors. Much attention in SER advocacy, scholarship and litigation has focused on the potential of the SER in the Bill of Rights to stimulate the adoption and implementation of social programmes and policies by the state. The landmark SER cases – Soobramony, Grootboom, TAC [Treatment Action Campaign], Khosa, Olivia Road, Joe Slovo and Mazibuko – have concerned the nature and scope of the obligations the SER should impose in relation to the conduct, legislation and programmes of various organs of state. Less sustained attention has been paid to the implications of SER to the vast areas of law – whether common law or indigenous law – formally (but misleadingly) classified as private law. This body of law is traditionally concerned with the legal regulation of the relationships between private parties – whether in the sphere of family law (responsibility towards children, marriage, inheritance, etc.), property law, contractual dealings and liability for wrongful acts (delict). I say this classification is misleading because, in reality, it is public power – largely in the form of judicial decisions or legislation – which creates, controls and legitimates this body of law. Classical liberal legal ideology tends to deny the constitutive nature of public power in private relationships, and insists on the maintenance of a strict divide and firm boundaries between public and private spheres (and law). The private sphere is associated with domestic institutions such as the family and with economic institutions such as the marketplace in modern capitalist societies. The underlying assumption is that equal, autonomous individuals transact freely with each other. The family and the marketplace have been regarded in liberal theory as the ‘natural’ institutions for distributing social and economic resources. The political theorist Nancy Fraser argues that the effect of relegating the meeting of needs to domestic or market institutions has a depoliticising effect in social discourses on needs:

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

Domestic institutions depoliticize certain matters by personalizing and/or familializing them; they cast these as private‐domestic or personal‐familial matters in contradistinction to public, political matters. Official economic capitalist system institutions, on the other hand, depoliticize certain matters by economizing them; the issues in question are cast as impersonal market imperatives, or as ‘private’ ownership prerogatives, or as technical problems for managers and planners, all in contradistinction to political matters. According to classical liberal political ideology, the main threat to freedom is the power of the state. However, this fails to account for the relative weakness of many states in the globalised economy and the relative power of large national and transnational private institutions such as corporations. Many formerly public services are being outsourced to private companies and public utilities are being privatised or commodified. The effect of perpetuating the public/private divide is to immunise the private sphere from the norms and values of human rights law. Louis Seidman describes how classical liberal rights obscure the extent to which public and private power are intertwined: Liberal rights both grew out of, and reinforced, the public‐private distinction as the core of Liberal legal ideology. Liberal rights were almost always conceptualized as claims by private persons against the state, rather than as claims to state resources to combat private oppression. Claims to Liberal rights therefore both ignored and obfuscated the extent to which the private sphere was, itself, constructed by public decisions. The failure to detect state responsibility had the effect of taking off the table constitutional claims to radical redistribution of ‘private’ resources and power. More work could be done to expose the implications of traditional private law – personal and family law, property law and contract law – for the SER entrenched in South Africa’s Constitution.

Personal and family law Assigning the meeting of certain needs to the domestic sphere has profound gender implications. It is largely through the unpaid domestic/ caring work of women, particularly in impoverished communities, that many social needs are satisfied – child care, care for the elderly and the ill, health care, and water collection. The effect is to alleviate or remove entirely the burden on public institutions for satisfying the need in question. The need is privatised or familialised rather than socialised. In this context, there should be heightened scrutiny of the implications of rules of marriage, inheritance and maintenance law – whether governed by common law, customary law or statutory law – for women’s access to social and economic resources. Court challenges to religious or customary law norms in respect of inheritance rights (Daniels v Campbell, Bhe v Magistrate, Khayelitsha) or the rights of gay partners (Fourie) have been argued in terms of an equality paradigm. The substantive and contextual equality jurisprudence that has emerged from the courts arguably allows sufficient scope for these bodies of law to be exposed to litigation. In Hassam v Jacobs the exclusion of widows from polygynous Muslim marriages from the benefits of the Intestate Succession Act was challenged. These cases were largely determined in favour of the litigants, with the exception of Volks v Robinson, which dealt with the inheritance rights of cohabiting partners. The failure to include SER arguments in these cases arguably represents a missed opportunity to highlight the implications of these private law rules for disadvantaged groups to gain and maintain access to critical social and economic resources. SER are not exclusively a matter of public law. It is the responsibility of the state to ensure private law promotes SER.

Property law Perhaps the area of property law where SER have played the most prominent role has been in relation to the eviction of people from their homes. In this context, private property rights generally

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009 clash head‐on with the rights of impoverished groups, particularly the right in Section 26(3) of the Constitution not to be evicted from their homes without an order of court made ‘after considering all relevant circumstances’. Legislation such as PIE [the Prevention of Illegal Evictions from and the Unlawful Occupation of Land Act] and ESTA [the Extension of Security of Tenure Act] have been enacted to give effect to these rights, and there have been some very progressive PIE judgments. However, in cases where common law rules about ejections have been applied, the record is far less progressive. In Brisley v Drotsky, the Supreme Court of Appeal (SCA) stripped the phrase ‘relevant circumstances’ of its potential to protect the housing interests of unlawful occupiers. There is no recognition of housing as a human right. The requirements for ejectment actions have been reduced to the existing common law requirements. While it may be argued that this approach has been superseded by the enactment of PIE and ESTA, the jurisprudence, particularly in relation to ESTA, indicates that the conceptual framework and doctrines of the common law continue to play a major role in how the courts approach the interpretation of this legislation. This may be a major factor constraining the development of a transformative jurisprudence under ESTA. The record of judgments about PIE is better, but housing rights jurisprudence still pays insufficient attention to the rights of marginalised people. Evidence about rights should be placed more squarely before the courts. The current court challenge to the Communal Land Rights Act is going to be a crucial test of the extent to which the provisions in the Constitution pertaining to the state’s duty to promote tenure security and gender equality will counteract the hierarchical decision‐making processes created by the legislation, as well as traditional constructs of exclusive ownership.

Contract law It is in the sphere of contract law is the sphere that has been least influenced by SER. The courts have generally endorsed a very high threshold for determining whether oppressive and unfair contract terms are unreasonable or contrary to public policy or good faith. Even in the post‐ constitutional era, the courts have frequently cited the dictum of Smalberger JA in Sasfin (Pty) Ltd v Beukes with approval: ...The power to declare contracts contrary to public policy should, however, be exercised sparingly and only in the clearest of cases, least uncertainty as to the validity of contracts result from an arbitrary and indiscriminate use of the power... In grappling with this often difficult problem it must be borne in mind that public policy generally favours the utmost freedom of contract, and requires that commercial transactions should not be unduly trammelled by restrictions on that freedom. Even though the courts have acknowledged that the doctrines of reasonableness, good faith and public policy in contract law must now be interpreted in the light of the constitutional value system, there have also been questionable judicial pronouncements elevating contractual freedom to a constitutional value. The impact of this approach is clearly demonstrated by the SCA decision in Afrox Healthcare Bpk v Strydom. This case concerned a challenge to a clause in a contract between a patient and a private hospital exempting the hospital from liability for the negligence of its staff. After his foot was amputated, allegedly as a result of negligent post‐operative treatment by a nurse employed by the hospital, the respondent instituted an action for damages against the hospital for breach of contract. One of the arguments Mr Strydom raised was that the clause in question was against public policy in that it was not in accordance with the constitutional right to health care services (Section 27(1)(a)). The Court held that the exemption clause did not directly conflict with Section 27(1)(a) in that it did not prevent access to health care services. It also held that Section 27 did not prohibit hospitals from

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009 insisting on legally acceptable conditions for the rendering of medical services. The respondent argued that the clause was contrary to the public interest in that it undermined a core value protected by Section 27(1)(a), namely the rendering of medical services in a professional, non‐ negligent manner. The Court rejected this interpretation on the basis that the hospital nursing staff’s professional conduct was secured by relevant professional codes and the sanction of damage to the hospital’s reputation and competitiveness, should its staff render services in a negligent manner. Furthermore, it held that contractual autonomy, which finds expression in the doctrine of strict enforcement of agreements,1 was a competing value also supported by constitutional values. Thus the Court held that the exemption clause did not impede access to health care services, nor did Section 27(1)(a) prohibit the imposition of legally enforceable conditions for the rendering of such services. The Court’s reasoning rests on a particularly formalistic and impoverished interpretation of Section 27(1)(a) and the values and interests it protects. Section 39(2) specifically mandates the courts to transcend a literal interpretation of the relevant provisions and to look at their ‘spirit, purport and objects’ in order to develop the law. The spirit, purport and objects of the health rights in Section 27(1)(a) go beyond a claim simply for minimal access to health care services through public institutions. The right to health in international human rights law requires the rendering of services to appropriate professional and scientific standards. The negligent rendering of health care services – whether by public or private institutions – undermines the very interests and purposes which a right of access to health care services is intended to protect. These include the protection of one’s life, bodily integrity and health. A fundamental safeguard in our legal system against the threats to health posed by negligent rendering of medical services is undermined by the denial of a judicial remedy. Moreover, the Court provides no substantive reasoning as to why the doctrine of the strict enforcement of agreements should be should be preferred in the specific circumstances of the case over the value of ensuring a remedy to those who suffer damages as a result of negligent medical care. The latter value has its origin in the constitutionally enshrined right of access to health services – one of the SER which the Constitutional Court has held is fundamental to the transformation objectives of the Constitution. Instead of evaluating the public policy considerations relating to the enforcement of the exemption cause in the light of the special nature of a contract between a patient and a hospital for the provision of health care services, the Court in Afrox treated the contract in question as simply another commercial transaction. This was a contract for the provision of a constitutionally enshrined right and the purposes and the values which this right protects should have played a far greater role in the Court’s evaluation of the enforceability of the exemption clause. Similarly, the Court should have taken judicial notice and accorded greater weight to the inequalities in bargaining power inherent in relationships between health service providers and patients. Afrox is illustrative of the dominance of a relatively laissez‐faire model of contract law even when it leads to the undermining of constitutional rights and values. The dominant paradigm of classical liberal contract law also has a far‐reaching effect on a range of contractual relationships entered into by impoverished groups – whether in the sphere of labour law, private law or consumer contracts. Although greater equity and protection for parties to consumer contracts has been introduced through the Consumer Protection Act 68 of 2008, the strong influence of classical liberal doctrines of contract law in South African legal culture is likely to exercise a restraining effect in the interpretation and enforcement of this legislation.

1 Pacta sunt servanda.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

Conclusion Socio‐economic rights have the potential to stimulate fundamental reforms in the core concepts of South African law. However, if they are to fulfil this potential, we need to be researching and raising in a more concerted way the impact of these concepts on people’s ability to enjoy meaningful access to SER. Some important work has been done in this sphere. This includes: the challenging of excessive prices charged by pharmaceutical companies for anti‐retrovirals (ARVs) and the failure to license generic manufacture of drugs using competition law; and actions by a consortium of pharmaceutical companies to resist constitutional challenges to the Medicines and Related Substances Amendment Act 90 of 1997. A further example is the work that has been done in the field of eviction law and customary land rights in eroding the powerful hold which concepts of strong and exclusive individual ownership have in South African legal culture. While SER should undoubtedly be stimulating the adoption of a range of social programmes, we should take care not to perpetuate the notion that SER are exclusively about the provision of benefits by the state to the ‘poorest of the poor’. This ignores the responsibility of the state to the vast areas of law governing the distribution of resources between various private parties. These areas of law cannot be neglected if SER are to play a meaningful role in bringing about fundamental reforms to many of the central tenets of our legal system. The outcome that we should be striving for is a transformed legal system, in all its dimensions. It is only through fundamental changes to the underlying doctrinal structures, concepts and institutions of our legal system that we can imagine a new legal system that is more responsive to the claims of those marginalised by poverty and social inequality.

Comments and questions • You have argued that certain spheres of law are depoliticising. How has this worked out in South African context? Have activists primarily defended themselves, with less of a focus on how the state should be allocating resources? How should public power be used to alter the socio‐economic power structure? Sandy Liebenberg: SER is often seen too narrowly. Work on customary law and gender, religious marriages and gender‐based violence suggests that the state is not playing enough of a role in the private sphere to ensure equity and fairness in the private law sphere.

Social movements and the realisation of socioeconomic rights Sbu Sikode, Abahlali baseMjondolo I stand before you humble and firm. There are all the laws and strategies on the one hand; on the other is the reality of what happens on the ground. Abahlali baseMjondolo began with a road blockade in 2005. It was born of hunger, anger and frustration. We organise poor communities, particularly shack dwellers and rural dwellers (through Abahlali basePulazini). Our politics begins from the fact that we are human beings. We want to see whether laws on SER can bring about a meaningful challenge to abuses of human rights. We cannot divorce law and people’s action to realise SER. Through our relationship with the Centre for Applied Legal Studies (CALS), the Legal Resources Centre (LRC) and lawyers who have done pro bono work for us when we face evictions, we understand how the law can help us. With the support of CALS we are going to the Constitutional Court to oppose the KwaZulu‐Natal Elimination and Prevention of Re‐Emergence of Slums Act. But we must strike a balance between technical and legal contributions to our struggle and taking our struggle to the streets. In the run‐up to the FIFA World Cup, laws such as PIE have not helped us; direct action is what helps us. Even if we run to court,

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009 evictions continue, and municipalities and private landowners continue to violate our human rights, court orders notwithstanding. There it has worked for us to take our struggle to the streets. Our struggle has not been easy. There are times when we agreed to accept a legal compromise but the law has failed us. Our leadership has had to balance making our constituency happy and paying respect to legal opinion. Our problems are not technically made, so they cannot be technically solved. These are political problems, made politically. We need to begin a new dialogue in which we do not exclude any sector of our society. NGOs [non‐governmental organisations], CBOs [community‐based organisations], legal firms, government and other sectors all have a role to play in realising SER. The only language that private landowners and municipalities violating our human rights can understand is social protest. This is a reclamation of human rights, it is not just violence. The only language that can be understood clearly and firmly is street language. But this should not exclude the importance of technical experts. We all need one another. We have shack intellectuals born of practical politics. This is the politics of every person, the politics of not having water or electricity, the politics of living in conditions where our children die. This is a living politics, a living learning, a learning where everyone accepts the view that we are all equal, that we are all created in the image of God. Everyone must put hands together to realise that another world is possible. Abahlali has created its own university, a culture of learning to build our own cadres in our shack settlements, an environment where we build our own leadership. Our country needs leaders. We have a library to encourage learning in the shack settlements. We in the ‘university of Abahlahi’ sent some of our comrades to the University of KwaZulu‐Natal to do the certificated course in participatory development. Our scholars and students and some of the experts come together to make sense of the theory that is taught at the university. Realising SER is a process, not an event; it is something that must be pursued every minute, every hour, every day. We call for human rights for all. We act rather than speak, but as we act, we must critique and reflect on our practice. Every sector needs every other sector. Our mandate is to bring government to the people and people to government. When we began we were seen as a threat to people in power. We were telling the untold truth, knowing that we might lose our jobs or our lives to tell that truth. We are human beings. It is important to create space where we can share, discuss, agree and disagree; a space to laugh and cry; our own space; a space for poor people to realise their humanity. We must protect that space from other forces. We are heavyweights in our own spaces. We say who we are, what we want, and how we want it. We can share our stories and our challenges with others. We in Abahlali baseMjondolo and Abahlali basePulazini are reaching a difficult place in our struggle. We must contribute, as well as make meaningful demands. We are engaging with top officials in the provincial administration and municipalities. We engage in court. And we engage on the street. The challenge is to find the right balance between all these elements.

Comments and questions • What will Abahlali baseMjondolo do if it loses the case against the KwaZulu‐Natal Slums Act? Sbu Sikode: As law‐abiding citizens we will respect the outcome of the court case, but we will continue to engage, exhaust every channel and then, if necessary, revert to political action. The Freedom of Expression Institute has done a lot of work around the right to protest in terms of the Regulations of Gatherings Act. Shack dwellers understand the Act and what it requires.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

Social movements, NGO struggles and rights strategies Steve Robbins, University of Stellenbosch What is the best relationship between class action litigation in support of SER and the mobilisation of collective political action? When does it makes sense to go the courts, and when do you have to go to the streets? What are the possibilities and limits of each approach? One critique of litigation is that it does away with class struggle, and that the logic of the law individualises issues of broad concern and demobilises people affected by an issue. Although much has been written about the success of the rights‐based social movement Treatment Action Campaign, the definition of success is not entirely clear. It is not clear how to gauge the degree of success of TAC or any other social movement that uses litigation and mass mobilisation in struggles over access to state resources. What measure would one use to assess success or failure? Would it be a measure of the sheer quantity and scale of resources distributed by the state as a result of litigation and mobilisation, e.g. the number of houses, people on ARVs, taps, clinics, schools or hectares of land redistributed? Or would one also have to include less tangible and less measurable outcomes such as ‘empowerment’ and active citizenship. While it is certainly important to measure service delivery outcomes, this is surely only a part of the story. For some political commentators, the recent service delivery protests signalled a profound reduction or narrowing down of political space rather than an extension of progressive pro‐poor politics. For Azapo’s Mosibudi Mangena, post‐apartheid state promises of free water, electricity and housing can only lead to citizens becoming passive and dependent clients of a paternalistic state. Rather than the protests being a sign of heightened political consciousness, they are a signal of dependency and demobilisation; ‘a prison called delivery’. So service delivery protests may not be what they seem. South Africa’s Constitution is extremely progressive. Its promotion of sexual and gender inequality, as well as its recognition of cultural, linguistic and socio‐economic rights has been lauded within inside and outside the country. The Constitution is extremely influential internationally. But it has become clear that constitutionally‐enshrined rights are very hard to realise. This is particularly the case for poor people, for whom ‘rights’ and ‘the law’ seem to be particularly remote and elusive. Over the past few months there has been a lively debate over the merits and disadvantages of communities and social movements resorting to litigation in their struggles over access to basic resources. Mike Muller, the former Director‐General of Water Affairs and Forestry, recently argued that the resort to water rights litigation by NGOs and communities opposing prepaid water meters and automatic disconnections undermined possibilities for effective political action. This view has been challenged by Jackie Dugard of CALS and part of the legal team which is representing the Mazibuko community in its water rights case against the City of Johannesburg. She has argued that, contrary to Muller’s dismissal of rights‐based approaches, in contexts of unaccountable and inefficient local government structures, litigation can be effective in compelling government to provide adequate services to the poor. In other words, litigation may be necessary where other forms of engagement are less likely to succeed. Dugard has acknowledged that recourse to the courts requires resources and institutional support. Dugard’s analysis implies that, under certain conditions, ‘lawfare’ may be more strategic than popular protest and public violence, which she describes as political ‘warfare’. The extraordinary achievements of TAC in recent years illustrate how litigation and rights‐based approaches can, under certain conditions, contribute towards addressing broader questions of social justice. This particular social movement’s achievements are of a tangible, and a less tangible kind. After major social mobilisation was used to put pressure on the state, successful court action was launched, and the state introduced ARV treatment through the public health system. These results were a result not only of court action, but strategic use of the media, global support, grassroots mobilisation in townships, lobbying of international pharmaceutical companies, and lobbying of

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009 government. Under apartheid, the government of the time was pressured into dropping influx control and forced removals through a similar tactical mixture of political mobilisation and litigation. There are now approximately 900,000 people receiving ARV treatment from the state (but treatment for prevention of mother‐to‐child transmission of HIV is patchy). Is this an indicator of successful litigation? Yes. Although South Africa now has the world’s biggest ARV treatment programme, this fact alone does not capture the other less tangible and measurable gains of this rights‐based social movement. AIDS activist struggles went well beyond simply pressuring the state to provide ARV treatment for poor and working class people; it also involved profound transformation of the identities of its members. In many cases, TAC’s particular brand of social activism managed to transform the potentially lethal stigma of AIDS into a badge of pride and courage. For some people, HIV was a blessing in disguise. This is an apparently shocking statement but, for many people who were near death when they were diagnosed, life seemed to have more meaning after they were tested. Rather than producing docile patients and biomedical subjects, TAC created highly politicised and knowledgeable activists who understood their role as the foot soldiers of a globally connected, working class health movement. They are now empowered activists with a high level of treatment literacy who run support groups, among other things. Receiving treatment has not just given these activists biological life, they have become socially alive. People I have interviewed have made statements like ‘MSF2 is my mother, TAC is my father’. These organisations fulfil functions normally associated with the family, because stigma has meant many HIV‐positive people have been ejected from their families and communities. If we focus exclusively on quantitative indicators such as numbers of houses built and number of people on ARVs, we can miss less tangible aspects. In the TAC case, litigation together with social mobilisation produced outcome that is extremely successful. But the Grootboom Constitutional Court ruling is often portrayed as a hollow victory, given that Irene Grootboom died in a shack and others like her continue to live and die in shacks without adequate services. But we cannot reduce the Grootboom case to the facts of her tragic fate. We need to evaluate the long‐term consequences of cases like TAC and Grootboom, taking into account the measurable and less measurable dimensions and the political implications to be able to decide when it makes sense to take to the streets and when litigation is appropriate. There are many cases in which human rights litigation ended up narrowing possibilities for pro‐poor outcomes, but it is not clear that popular protests and public violence on their own achieve better outcomes in terms of service delivery. And our assessment of success and failure should take into account less tangible outcomes such as empowerment and political agency.

Comments and questions Jackie Dugard, CALS: I did not come up with the phrase ‘lawfare vs warfare’ in the article published in the Mail & Guardian, it is not an either/or. Even though it has embarked on litigation, the Anti‐ Privatisation Forum (APF) has never said it will respect the rule of law, and there has been mass destruction of pre‐paid water meters. There is nothing to say everything a social movement does must be legal. Steve Kahanowitz, LRC: There are some misconceptions around the Grootboom case. Prior to the hearing, the parties came to an agreement on certain services to be delivered to Wallacedene (the affected area) immediately. This changed the nature of the case and what was argued. The court ordered that Chapters 12 and 13 of the national housing policy in respect of in situ upgrading be implemented, and subsequent cases have ordered that these chapters must be implemented. Since the judgment, the City of Cape Town and the community have been in consultation around the

2 Médecins Sans Frontières [Doctors without Borders].

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009 development of low cost housing in Wallacedene, the biggest low‐cost housing development in the Western Cape. But every problem associated with low cost housing has been seen in Wallacedene. Sandy Liebenberg: It is not true that TAC is the success story of litigation and Grootboom the failure. Grootboom has come up in a variety of subsequent cases, e.g. Joe Slovo, where alternative accommodation is now established as a right. Grootboom is far less successful than TAC in the sense that it was not supported by a housing rights movement, but it has led to changes to the legal framework, and it can be argued that Grootboom was more significant.

Session 2: Socioeconomic rights interventions: How do we measure ourselves?

Measuring progress towards socioeconomic rights Malcolm Langford, Norwegian Centre for Human Rights, University of Oslo

General context to question • The Constitution of South Africa 1996 provided a full panoply of civil and political rights and a large number of economic and social rights. • Many pieces of legislation invoked socio‐economic rights; some had a ‘rights‐based’ template. • There has been some socio‐economic progress, but levels of poverty and inequality remain stubborn and increasing in some areas. • One extra‐political response was the birth, rebirth and/or reorientation of NGOs, social movements, trade unions and community organisations. Many invoked rights. • ‘Rights’ strategies have won praise and critique, including on the issue of impact. • Discourses are emerging on ‘good’ and ‘bad’ strategy which can vary widely between location of discourse. • South Africa is not unique in asking these questions – similar in Latin America and South Asia where comparable conditions exist. Longer US debate on and evaluation of civil rights strategies.

Specific context to question • November 2007: Participants at partners’ conference: “How should we measure ourselves? Should we use indicators for example?” • February 2009: Evaluation of Norwegian‐SA Human Rights programme. Controversy over methodology used for relevance and impact. • 2010: Book research project to measure role and impact of SER strategies in South Africa, including by partners. • Future: What worked? What have we learned? What should be changed? Supported?

Who is being measured?

Non‐state actors (organised) State actors? • Social movements; • Human rights commissions; • Associations and unions; • Regulators; • NGOs; • Authorities; • Universities (litigation, research, policy). • Donors and international organisations.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

What are ’strategies’? • Civil disobedience; • Litigation defence; • Dissemination; • Policy advice; • Mobilisation; • Research; • Negotiation; • Lobbying; • Empowerment • Awareness‐raising; • Mass media experiences • Formal education; • Strategic litigation;

Who evaluates?

Self Consultant • Focus: Immediate or structural issues • Focus: relevance, efficiency, procedures, unless organisational crisis or good coherence, impact, sustainability, leadership. replicability, visibility, cross‐cutting • Critique: too subjective, no time. themes etc. • Critique: too quick, constrained by terms of reference, too technocratic.

Academic Peers/other actors (e.g. NGOs, government, communities etc.) • Focus: relevance, impact, negative externalities, principles and ideology, • Focus: principles and ideology, sustainability and replicability, but also legitimacy, process, relevance, impact. more on process. • Critique: too subjective, too quick, too • Critique: too complex, too free, anecdotal. uncommunicable results.

What is impact? Can we actually measure impact of human rights strategies? Are they a hard or special case?

Yes: No: • Usually an input to a meta‐process. • Other strategies also constitute inputs. • Intangible and public good. • Alternatives to human rights strategies. • Non‐consequentialist. • Rights advocates make instrumental • Emphasis on standing for principles. claims for rights. • Used when other strategies fail. • Need flexibility for changing circumstances.

Five issues of measurement

1. Baseline • Subjective – baseline for impact should be determined by strategy aims .Can they be sufficiently concretised? • Objective – strategy must also substantially relate to human rights – relevance issue. Types of impact aimed for: • Direct – improve socio‐economic rights realisation • Indirect – improve conditions for realisation (e.g. law, policy, public awareness, substantive political uncertainty, mobilisation etc) or empowerment/autonomy/participation itself.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

• Unintended –positive or negative effects

2. Time period for expected impact • Short, medium or long? • Relates to baseline, but what is reasonable? • Decision can substantially affect findings on impact, e.g. o Brown v Board of Education. This impact took 30 years to be seen, so very different results would have been seen if the impact was measured in 1973 and again in 1993. o 2009 evaluations.

3. Causality • Can we separate out the impact of a human rights strategy from other factors? • Human rights strategies often imnvole many stakeholders and are highly contingent. • They sometimes go with or against a trend. • What baseline and methods are reasonable? • Can we include the absurd and lateral effects in impact analysis? E.g. deliberately failing as a strategy to make a point about the system.

4. Alternatives • Whatever impact is found (none or much), can it be evaluated outside a series of alternatives? The Mazibuko case was only brought to court after five years of civil disobedience and protest. • Easier if have control models (e.g., one community with support and another without) or a litany of past failures from other strategies. But it is not always clear. • The weight of of impact results should be determined by knowledge of alternatives

5. Methods • Disciplines. Law, political science, sociology, anthropology, community development, economics, history all have different approaches to the question. • Methods – case study, comparative, quantitative, process tracing... • Sources – from interviews to laws, from archives to numbers. • Levels ‐ macro,meso,micro and beyond.

Example: Forced eviction litigation, a posssible quantitative approach • Obtain a sample of 50 cases taken to court. • Develop a measure of impact (upgraded, remained, relocated, evicted). • Include independent variables to see what was most influential: (a) rural/urban, (b) presence of social movement/legal centre/NGO/legal aid board (c) successful judgment (d) type of court (e) size and income of community; (f) became a public interest test case. • Critique: Need a lot of research; will it pick up qualitative dimensions; how to include alternative of not going to court and negotiating, for example.

Concluding thoughts • Keep the woods and the trees in mind – measurement is a tool not an end. • How much do we already know on impact, how reliable is that information and what is the timeframe? • What types of lessons learned have we drawn from existing information? Is it adequate? • Do organisational objectives need to be reframed to better establish baselines? Or are logframes another form of tyranny?

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

• The NCHR book project aims to be open‐ended picking different strategies and evaluation tools. • It is important to frame measurement questions which can provide answers that might suprise us.

Comment: Measuring SER in South Africa Advocate Geoff Budlender One of the most hotly contested issues in the negotiations leading up to the adoption of the 1996 Constitution was whether SER should be included in the Constitution or whether they should be provided for only via government programmes. Conservatives wanted them as government programmes, progressives wanted them as rights. But it should have been the other way around. Why was a rights‐based approach adopted? What were those rights supposed to achieve? What was the purpose of having these in the Constitution as rights? The government did want, and still does want, to provide housing, land, water, medical services, etc. Adopting a rights‐based approach helps us know what to measure along two dimensions. 1. Rights as an instrumental approach to ensuring the flow of benefits. Creating enforceable rights was believed to increase the probability that government would provide the necessary benefits and increase the likelihood that people’s living conditions would improve. At the time it was not fully understood that this would have profound implications on the private sphere. If these are rights, it is more likely that the benefits will flow. Bureaucrats are usually happy to say these should not be rights. They argue that the wrong people will get benefits first, because they go to lawyers. They argue that these rights get in the way of ordinary people getting these services because it demobilises them. 2. Rights as a view of citizenship. Rights can transform power relations; they are a way of building democracy; they have the potential to transform people from being passive recipients of services to active citizens. They impact on the private sphere by potentially transforming unequal power relations, including gender relations. If we want to measure the impact of SER interventions, we should try to measure both of these things. Measuring changes is relatively easy; attributing causality is much more difficult. Mrs Grootboom received what she claimed – secure tenure and access to basic services. She did not claim a proper house from government. She got more than the modest claim she made for herself. I imagine that Irene Grootboom wanted a house; my guess is that the lawyers thought that what they were asking for was the best that could be achieved. Their legal assessment was the right one. Was the issue debated between her and her lawyers? After the case she said she felt dissatisfied. When urgent applications need to be brought, there may not be much engagement with clients. Grootboom is often described as the case which establishes the right to adequate housing for everyone, but that is not what the judgment actually says. This litigation changed the terrain fundamentally when it comes to evictions. Joe Slovo is a lost case for the people who live there, but the fact that the Constitutional Court suspended the decision of a lower court might have created a right to alternative accommodation for people threatened with eviction. This is an example of failed litigation having a powerfully positive consequence. But many eviction cases are never brought to court. It is most important to track the extent to which issues are not brought to court because that is a measure of the transformation of power relations. Measuring the extent to which power relations have been transformed by SER interventions is difficult, but very important. If rights are mobilising, everything will follow. If they are demobilising, nothing will happen unless there is a benevolent government in place. We must recognise the paradox of our constitutional rights – they are both empowering and constraining. Rights define what my entitlement is, but defining my entitlement excludes everything

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009 to which I am not entitled. Courts are there to mediate conflict and keep things going. There is a fundamentally conservative element to what they do. There is no quantitative measure of the degree of transformation in society. Rights will not bring about a revolution. They will bring about some changes, some fundamental, but they will not change the structure of society because the one thing that courts do not do is make revolutions.

How we measure, what we measure: Challenges, choices and obligations Mark Abrahams, Centre for Open Learning, University of Cape Town

Challenges Organisations engaged in SER interventions use several or all of these strategies: • Civil disobedience • Formal education • Empowerment • Litigation • Policy advice/ lobbying experiences • Awareness raising • Mass media • Research

Complexity of the problem – interrelated with long histories • Housing – house, shelter, adequate housing? • Housing, maintenance, affordable housing. • Affordable and safe transport. • Right of taxi owners to ply trade – competition between government departments and private sector. • Living wage/ right to employment – double digit wage demands. • Health care.

Complexity/ simplicity of the intervention • Multi‐pronged approach of the intervention: o Civil disobedience o Litigation o Awareness raising, formal education. • Opportunistic – seeking the gap, platform. • Vying for attention among many other rights. • Sometimes dictated by the availability of resources (donors/ volunteers).

Interventions involve people as leaders, trainers, facilitators, advocates and recipients/clients • Dynamic leaders inform/ dictate/ • Mixed sets of values operating influence/ manipulate strategies. simultaneously. • From voluntarism to employment. • Organisational politics. • Mixed messages in large scale interventions.

Target group often less empowered/ vulnerable • Limited capacity (not lack of). • Constraining traditional practices. • Limited social capital (not lack of). • Differing agendas – human rights vs. • Limited access to appropriate resources. food on the table. • Debilitating/ disabling contextual environment.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

Anatomy of social programmes3 • Intervention as theory (e.g. • Interventions are embedded in multiple shackdwellers’ university). social systems. • Interventions as active. • Interventions are leaky (change over • Intervention chains are thickly time). populated. • Interventions are open systems and • Intervention chains are non‐linear, can change the conditions that make them go into reverse. work in the first place.

Programme logic model

Elements of programme flow

Impact evaluation (ultimate effects and results) • The combined result of various effects or outcomes that together produce the benefits to the users. • The basic aim of impact evaluation is to produce an estimate of the net effects of an intervention – i.e. an estimate of the impact of the intervention uncontaminated by the influence of other events or processes that may also affect the behaviour or changes that a programme is directed (Freeman & Rossi). • An evaluation can look at the impact of an intervention on the final outcomes, rather than only the project outputs, or be a process evaluation which focuses on implementation. • An evaluation is concerned with establishing the counterfactual, i.e. the difference the project made (how indicators behaved with the project compared to how they would have been without it).

Choices • Be clear in the purpose of the evaluation! • A comprehensive evaluation involves assessing inputs, processes, implementation, outputs, outcome and impact. • Decide if it is to be process, outcome or impact evaluation. • The latter is demanding but not impossible depending on how it is defined and the programmatic context.

3 Pawson, 2006.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

The notion of a “good enough” design • Ethical and practical constraints often make randomised experiments impossible. • Time and resource constraints always limit design options. • The importance and intended use of the evaluation often determines the choice of design. • Ultimately the optimal design is a trade‐off between these constraints.

Possible tools for policy coherence evaluation • Programme evaluation theory. • “New public management”. • Meta‐evaluation theory. • Objectives based evaluation • Theory based evaluation • Results oriented approaches • Case study methodology. • Impact assessment methods

Obligations4 Evaluators can simultaneously find themselves assuming diverse roles as: • Detective determining project processes and outcomes. • Activist documenting programme quality. • Critical friend helping identify strengths and weaknesses. • Coach or consultant helping in improvement processes. • Mediator among contentious stakeholders. • Advocate or public relations agent helping to protect. • Devil’s advocate challenging staff. • Spy after information they may prefer to keep back. • Schizophrenic in trying to balance many tasks.

Smith (1994) on evaluation “Let me state what I look for: a sense that the evaluator was present over a long enough period and close enough to the action and to the participants’ meanings; informed by some system of theoretical ideas about the social and educational substance of the program; adept at the ethical, political and personal relationships that qualitative methods make inevitable; successful in sampling widely with multitude indicators and methods; adept at forms of representation.”

Comments and questions

Children as a lens for evaluation • SER strategies may have unintended consequences for children, and measurement of impact should take this into account. A children’s lens should be applied from the research phase all the way through to strategies and action.

A holistic approach • SER may be realised in one area at the expense of another, e.g. if the aim of an intervention is to see more children in school, the unintended consequence may be less food at home.

Evaluating SER litigation strategies • We tend to assume that we will be able identify the kinds of cases we should be taking forward on the basis that these choices are informed by substantive debate. This may be the case in areas as land reform, but is not always true in other areas of SER. An evaluation

4 Mabry, 1998.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

might describe the litigation on ARVs as a success, but there are currently provinces that are not providing these drugs. Can this really be described as a success? • Evaluation of litigation that involves social movements should include the extent to which the litigation process was initiated and whether it impinged on the political space that the social movement occupies. Mark Abrahams: An evaluation of the impact of litigation strategies would have to look at the specifics of each case. Malcolm Langford: Evaluating litigation as a strategy should take into account those cases that are settled before proceedings begin (the so‐called ‘shadow of the court’), but it is very difficult to keep track of those.

SER as both empowering and limiting Malcolm Langford: As Geoff Budlender has pointed out, rights can be both empowering and limiting. In the Nordic context, they build social welfare states without explicit mention of rights. There, the political space was transformed by political imagination to create the kind of societies that go beyond what has been achieved in many other places.

Looking backwards • It is possible to do ‘backward evaluations’ – to start with a change that has occurred, and then to establish what caused it.

Evaluation and migrants’ rights • When it comes to migrants, the South Africa rights discourse is counter‐productive, particularly when there is a discrepancy between formal legal rights and rights in practice. A refugee claiming rights might be killed.

SER are inherently political • Rights are not necessarily tied to one set of meaning, or the way liberal societies view them. There might be alternative versions of what is possible in societies. We have the ideal of equal rights for all people on the one hand but market‐based approaches are fundamentally unequal. Rights are inherently political, no matter how much we try to constrain them by law‐based strategy.

The right to participate • Evaluation should take into account the procedural right to participate because this is where the rights debate interfaces directly with transformation and social mobilisation. The Interim Protection of Informal Land Rights Act may be the only piece of legislation on the statute book that does not provide for someone else to decide what is good for people. Procedural participation is not entrenched as a right partly because Constitution only requires a rational decision.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

Session 3 & 4: Working groups I and plenary reportbacks

Right to water and environmental rights group Panelists: Jackie Dugard (CALS); Rachel Wynberg (University of Cape Town); Helgard Muller (Department of Water Affairs); Shereza Sibanda (Inner City Resource Centre).

Key discussion points • National government, specifically the Department of Water Affairs, is reluctant to step in where there are serious water and sanitation problems at local government level, even where these represent serious threats to human health. E.g. the Emfuleni municipality is allowing raw sewerage to flow into the Vaal River. • The current constitutional model of spheres of government promotes decentralisation to the lowest level, even when it cannot work. Small municipalities are saddled with having to provide water and sanitation services beyond their technical and financial means. (They are unable to cross‐subsidise services to the same extent as larger municipalities.) • Experience from the Mazibuko water meter case shows that a key challenge for lawyers engaging in litigation to defend the rights of a poor community is to retain connections with the community they represent. Relying on a social movement or CBO to keep this connection alive may or may not work.5 • The amount of time and money involved in SER litigation may be massive – five years and a very large amount of money in respect of the Mazibuko water case. • The Johannesburg municipality is refusing to enter into direct water supply agreements with tenants in derelict buildings in the inner city. Whenever landlords do not pay the council, the water supply is cut off. Many landlords receive money for water from their tenants but fail to hand the money over. The municipality is harassing poor people in the inner city with no end in sight. • Environmental degradation in South Africa is very serious. Although there are good policies in place, implementation is poor. • The outcome of the Biowatch case in the Constitutional Court was hugely significant for all organisations acting in the public interest because it means they can engage in litigation without the chilling effect of a possible costs order against them. • Environmental NGOs have technical knowledge about environmental degradation, but their ability to make this relevant to poor people who suffer the most severe impacts of environmental degradation needs to be improved. • The term ‘community’ is problematic, because it is a homogenising discourse that does not take into account complex power differentials within communities, e.g. landlords and tenants, and gender disparities. • Given resource limits, there should be a high‐level strategic assessment of the benefits of a particular course of action, e.g. which litigation cases will unlock the most significant benefits for the biggest number of people. A related point is that a filtering mechanism is needed to ensure that issues of a local nature are dealt with at that level. The water caucus performs this function in this sector. • Courts are reluctant to accept qualitative research as evidence, and quantitative research is extremely expensive to undertake. Qualitative research may be more relevant in specific cases.

5 The case is currently before the Constitutional Court.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

Land and livelihood rights in rural areas group Panelists: Ruth Hall (PLAAS); Ben Cousins (PLAAS); Musa Zakwe (Association for Rural Advancement – AFRA); Betty Hattingh (Legal Aid Clinic, Stellenbosch University)

Key discussion points

Roles & strategies of nonstate actors • Mobilisation around land rights is patchy and uneven. o There are different priorities as well in different places and situations. o There is a lack of leadership and unity in the ‘land sector’ nationally. • There has been no regular place of convergence, for strategising and learning. o There are some productive informal links and networks. o There is some learning from international experiences (Mozambique and MST).6 o But legal strategies have been largely in isolation (or legal ‘services’ rather than ‘strategies’). • Shift towards addressing livelihoods more holistically rather than tenure in isolation – in research, in NGO practice, in mobilisation. o Alternative visions for redistributive tenure reform.

Impact of these strategies – and how we might better measure impact • Have tended to focus on delivery by the state. o Need a more multi‐pronged strategy? • Some tensions between NGOs and social movements, around relations and roles o Expectation that the Landless People’s Movement would gather momentum – did others step back? • Uncertain about measurement. o Rights are being undermined in practice; some of this is measurable. o Passing of legislation, and amendments, can be considered evidence of impact. o Chronic non‐enforcement and realisation of rights a symptom of widespread failure – by state, but also by human rights advocates.

Key lessons learned • Formal rights in law or policy are only one factor contributing to the realisation of land rights in practice. • But struggles over rights can form part of broader strategies for systemic change, and can help challenge power relations. • Struggles which foreground rights can: o help defend poor people from exploitation, abuse and dispossession; o open political spaces for organisation and mobilisation; o provide a grounded critique of unequal and unjust social order; o express a vision of an alternative, more just social order; o move from defence of land rights to transformational versions of land rights.

Key issues 1. The centrality of political mobilisation by rural people and political leadership on these issues. 2. Problem of fragmentation of legal frameworks being mirrored in fragmentation of political mobilisation (such as it is).

6 Movimento dos Trabalhadores Rurais Sem Terra (Landless Rural Workers’ Movement, Brazil).

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

3. Need for investment in institutional frameworks for rights holders – private property rights supported by enormous political investment; no comparable investment in other types of rights (community advocacy, community forums, community property associations). 4. Awareness of rights is a precondition but is a totally insufficient condition for mobilisation or ensuring these are put into practice (for officials too). 5. There is an urgent need for support for impact litigation on tenure issues, to be linked up with wider strategies of mobilisation, research and advocacy.

Key strategies for the future • National‐level linkages between initiatives – but who takes the lead? o Rural people taking the lead. o Lawyers and academics ‘on tap, not on top’. • Political mobilisation (where it exists) must inform opportunities for targeted advocacy and litigation. • There was disagreement in the group about acting outside of the law – and whether illegal direct action undermines or can complement a legal strategy. o There is a history of civil disobedience for social change. o The point is how to do this strategically. • There is a need to address a cohesive vision for land rights as the basis for livelihoods in communal areas, farms and redistributed land. o and pursuing a key demand for investment in institutional frameworks for supporting land rights (resourcing and oversight).

Litigation priorities • ‘Living customary law’ (can be consistent with the Constitution): Challenge the eviction of widows from their homes by their in‐laws. • Facilitating long‐term tenure security: Section 4 of the Constitution asserts a positive obligation to provide ‘tenure which is legally secure or... comparable redress’ (use as defence in eviction case?) • Enforcement of ESTA: The failure of the state to take reasonable steps to enforce the provisions of ESTA and to take action where violations have occurred. • Challenging the ‘private’: farm dwellers are isolated from the ‘public’ and from entitlements to services, because they live on privately‐owned land. • Equitable access (redistribution): The right of equitable access to land contained in Section 25(5) of the Constitution has not been tested through litigation.

Political participation group Panelists: Tshepo Madlingozi (University of Pretoria); Richard Calland (University of Cape Town); Alison Tilley (Open Democracy Advice Centre).

Key discussion points • Too often elites (e.g. NGO professionals and academics are presented as legitimate participants in political processes, but they tend to dominate the discourse. Current civil society configurations should be challenged because they are hierarchical, divisive and exclusive. Many civil society groups and donors are complicit with reinforcing a model of participation that privileges liberal democratic ideas and technocratic interventions rather than a model that supports participatory democracy driven through social mobilisation. But to what extent have social movements captured the realm previously occupied by civil society and addressed concerns about elite‐driven participatory processes?

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

• Court‐based strategies for social movements are largely dependent on the support of public interest NGOs. • One school of critical legal scholarship on legal engagement suggests that once people use legal strategies they become co‐opted. Another school says the law is not necessarily disempowering; that it can aid mobilisation. • There is positive jurisprudence which recognises the importance of the courts having a commitment to encouraging the state to have a meaningful dialogue with disempowered people. But the Constitutional Court has, in a few key cases, showed a disquieting deference to politicians, thereby diminishing the public’s right to political participation. • The Mbeki government failed to protect the state from inappropriate interference by private interests. • Better use should be made of mechanisms, institutions and processes which already exist. • There should be a greater focus on ensuring sound appointments to key state institutions. • Civil society is not adequately informed about the choices and challenges around key issues, including poverty alleviation, energy, food and water security. It should pay more attention to the rules of the game and how decisions are made so that it can improve equitable access to decision‐making processes. • Research should be done into the development of, and advocacy for, a national convention on a protocol around public participation. • Government is very unresponsive to requests for information made under the Promotion of Access to Information Act (PAIA) (over 64% of requests go unanswered). In some cases the threat of litigation has resulted in the release of information. In other cases, the matter drags on. The situation may improve with the appointment of an information regulator. This could create a significant improvement in political participation. • For a short time, government held open meetings. If these could be resuscitated, they might provide a foothold for civil society engagement in the interest of improving government responsiveness and service delivery. • It seems that many service delivery protests arise from a lack of information – people need to know what is going on and why. • There should be more effective public participation, less ‘speaking on behalf of’, and greater voice for all, particularly marginalised groups, including children. • Xenophobic violence in 2008 tended to happen in areas where there were no legitimate representative structures. This highlights the importance of promoting local accountable structures.

DAY TWO

Session 5 & 6: Working groups II and plenary reportbacks

Women’s rights group Panelists: Anneke Meerkotter (Tshwaranang Legal Advocacy Centre – TLAC); Jennifer Dey (Rape Crisis); Jennifer Williams (Women’s Legal Centre).

Key discussion points • Conference participants are engaged in litigation, research, services and support. • There is a lack of a radical approach to women’s rights (one view), but radical discourse may silence people (another view).

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

• Conference participants speak on behalf of their own organisations. Much discussion takes place at grassroots level about women’s rights, even though it is not published in feminist journals, and many CBOs and local faith‐based organisations intervene in situations of GBV. • The ‘breaking the silence’ discourse on gender‐based violence (GBV) may alienate many women. Survivors of such violence may want to remain silent about what has happened to them. Simply coming forward to report a rape is a radical step for many survivors. • Children are particularly at risk in situations of domestic violence, and a child exposed to violence is at greater risk of becoming a perpetrator in later life. Even though being subjected to corporal punishment is a significant factor contributing to the likelihood of becoming a perpetrator, the Commission Gender Equality supported corporal punishment in a submission to Parliament. • There is a need for improved networking. Had the women’s network known about the submission on corporal punishment, it would have responded. • There should be research to determine the impact of SER strategies on gender rights. • Mainstream SER strategies should be directly linked to the advancement of gender rights. There is potential to, e.g. link the right to health to maternal mortality and sexually transmitted infections. • There is a need for work with men on transforming dysfunctional masculinities and challenging cultural stereotypes about women. • There is a constant tension in this work between getting angry and risking alienating the state officials who are responsible for implementation. • Litigation has achieved major gains, including changes to the means test, extension of grants to people without documentation, enabling refugees to get social grants, and the equalisation of age of men and women to be eligible for pensions.

Migrants’ rights group Panelists: Tara Polzer (Forced Migration Studies, University of the Witwatersrand); Christina Nomdo (RAPCAN); Siyambongu Heleba (Community Law Centre)

Key discussion points • Silence and trying to become invisible is one migrant response strategy to being in a foreign country, but people live in perpetual fear of being flushed out as foreigners. • Some individual migrants may wield some power by aligning themselves with powerful persons. • Because migrants are vulnerable, they are expected to pay bribes to get things done. • Migrants must engage in self‐help with respect to protection and other services. • Many migrants tend to stick with others who share a common nationality or ethnicity. • The South African government is subject to normative international human rights standards and domestic law with respect to migrants and refugees. • Litigation and legal arguments have been used to try to secure the rights of refugees and migrants, but these have proved ineffective, either because authorities defy court rulings, or lack the capacity to implement them. • Although South Africa is the largest destination for refugees and migrants in the region, it is not the only receiving country. There are also refugees in Botswana (which has integrated Zimbabwean refugees). Zimbabweans going to Mozambique are not seen as foreigners. That country has denied there is a crisis in Zimbabwe, and made health care available to refugees. Zimbabweans get access to health care in Zambia and the Democratic Republic of the Congo. • South Africa has shifted its policy towards Zimbabweans, who are now allowed to come here without a visa for three months. Although an agreement has been reached to allow Zimbabweans to work in South Africa, this has not yet been implemented. These policy

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

changes, which were the subject of civil society advocacy, have not been explained to South Africans. Zimbabweans are now having to identify themselves. • Xenophobic violence and cholera from across the border created a window of opportunity to get the attention of the state and other actors.

Key lessons • Enjoyment of rights is context‐specific. They are enjoyed and secured not only in a legislative and administrative context, but a social, cultural, economic one too. • There is a need to explore push factors for migration. The actions of the authorities in countries where migrants come from must be in concert with the efforts of those within receiving countries. South Africa is a destination because of its stability. Foreign policy should be aggressive in demanding adherence to human rights in the Southern African Development Community (SADC) region. South Africa must focus on stabilising push factors.

Key strategies for the future • Do research to map the capacities of stakeholders on refugee and migrant groups, building on the existing map of key actors. • Secure the co‐operation of local and regional actors. In Botswana there is a thrust to work with the push factors. Exert pressure on that government’s attitude towards the democratic deficit in Zimbabwe. • Separate issues around key areas of security: housing, land tenure and security, women and children, and access to health. • Support a move away from the emphasis on citizen’s rights towards human rights more broadly. • Encourage the South African Human Rights Commission (SAHRC) to do more to secure refugee and migrant rights.

Urban housing and security of tenure group Panelists: Malcolm Langford (NCHR); Steve Kahanowitz (LRC); Thulani Ndlazi (Church Land Project); Lindela Figlan (Abahlali baseMjondolo)

Key discussion points

How things are • Development is a tsunami. It sweeps away the poor as it prepares for a better world. • Developmentalism has created a culture of evictions. With increased development, there has been an increase in land values, and an increase in evictions. • There is a process of excluding people “emaphandleni” – those who are outside. In previous decades the term referred to people from the rural countryside. • Courts are being forced to manage the housing crisis. But many court orders and judgments are not being implemented. • There is serious tenure insecurity. In Nairobi, 65% of people are living in informal housing. In Durban the figure is 52%. A major feature of our urban housing is informality and insecurity of tenure.

Strategies • Political action happens at various levels: Political action – protest action, litigation and negotiation – is necessary. Strong protest action provides the basis for negotiating from a strong position. • Do not see the state as an enemy. Help the state overcome its limited capacity.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

• A shift from ‘consultation’ to ‘engagement’. It should be noted that different disciplines use these terms differently. In the development field, ‘engagement’ has a more positive connotation than ‘consultation’. In recent PIE cases, the Constitutional Court has used the term ‘consultation’ to refer to something which happens before the decision to evict is taken, and ‘engagement’ as something which should happen once a decision to evict has already been taken.

Regional connections • In Mozambique the land belongs to the state. This creates some sense of security of tenure, but with the booming city and the market economy, the state is making deals with private investors, making people vulnerable. • In Zimbabwe there are limited laws on security of tenure and housing, and those that exist are simply ignored. A culture of eviction is part of the history of Zimbabwe, and evictions are continuing.

The way ahead • Tenure security in a market‐led economy is problematic. • There should be an alternative vision – where is the positive alternative for tenure security, not just defending? • The model of exclusion says that certain people do not count. People who currently do not count must count, and they must lead the discussions.

Session 7: Case study review and plenary report backs

Joe Slovo case study group

Key discussion points

Kennedy Road • In the Kennedy Road informal settlement in Durban, there are three recognised groups: 1) people who arrived before 2004, have a card, and are on the upgrading list; 2) people who arrived after 2004; 3) those who have already benefited from government assistance, e.g. people who have received RDP houses and sold them, or rent them out. The leadership is elected every year. The municipality used to talk only about relocation. Now they are talking about upgrading. The municipality has asked the committee to ensure that number of people on the site does not increase beyond its current level. The committee will only do this once there is certainty that the upgrade will in fact take place.

Breaking New Ground housing policy • The N2 Gateway project was billed as a pilot for the Breaking New Ground (BNG) policy. What would have made a tremendous difference would have been to put in place a social compact with the community as a whole, subject to reasonable conditions. This was a missed opportunity. • BNG was a forward‐looking policy intended to encourage mixed neighbourhoods comprising in situ upgrading, commercial property, BNG housing and ‘gap’ housing.7 The N2 Gateway plan itself shifted several times and after one devastating fire, the local authorities stopped residents from returning and opportunistically put up rental three‐storey flats which were never part of any earlier consultations/plans. The engineers repeatedly received new

7 Housing which caters for people who fall in the ‘gap’ – people who earn too much to qualify for low‐cost housing and too little to buy property on the commercial market.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

instructions, incurring massive unauthorised expenditure. The nearest land which could have been used for temporary accommodation was in Epping, but the mayor, MEC [member of the Provincial Executive Council] for housing and national housing minister backed down when industrial landowners threatened legal action. They chose Delft, 30km out of Cape Town, as the site to which people would be relocated. • The vision of middle class housing next to the highway as part of the eradication of slums was unaffordable for the residents of Joe Slovo from the outset. The process could have gone the route of in situ upgrading. The bigger aspirations of government got in the way of what was possible. • Political will is one half of the problem, the other is capacity. BNG showed that the state has accepted the idea of incremental housing, even if it failed in this locality. • Joe Slovo was reasonably small settlement and when the authorities provided some services, they could have provided tenure security for those people. Now that the numbers are large, the problem is much larger. Accommodating the needs of so many people in such a small space may not have been possible anyway. • Joe Slovo shows that the idea of housing as a commodity rather than a process associated with a settlement and a livelihoods is still current in government thinking. Evidence was placed before the Constitutional Court in respect of housing as more than a building, but the court did not take that into account. The Kennedy Road example shows it is possible to have a more participatory process which is less top down and more responsive to the needs of people. • Houses are still seen as boxes. Shack dwellers are the fastest and most efficient builders of housing.

Politicking • Development processes become captive to real competition in political actors – in this case between spheres of government. Local government elections are coming up, so the problem is likely to become worse before it becomes better.

The bigger picture • Budgetary constraints are the key issue, and government can always argue that it is doing what it can, even if a progressive court judgment is secured. • Locating people on the periphery of cities on the basis of low land cost ignores the importance of transport, infrastructure and services and the cost of providing those in peripheral locations like Delft. • Arguing a lack of money and capacity is an excuse for not delivering, the government has shown it can meet deadlines associated with the World Cup.

Building on local agency • Support and strengthen the political resilience of people and force the government to pay attention to the needs of the people who do not count. • Capacity to monitor and respond must be located in beneficiary communities themselves. The key issue is to identify key points of intervention to promote the development of that capacity. • Despite division and fragmentation and more than one committee, people can construct a community of interest acting in common. While communities are not homogenous, it is not impossible for local people to construct a political institution, a local institution that can guide local processes and implementation, determine who benefits, etc. • Local people on the ground can build implementation capacity. There is a key role for local institutions to secure tenure. The fire hazard – physical planning – will not find a technocratic solution without directly involving the people who live there providing part of

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

the answer. Disaster mitigation efforts in Joe Slovo are a case of how not to do development. The authorities could have built on existing sophisticated local social institutions like construction technologies which enabled shacks to be flattened quickly in the face of an oncoming fire, and a system to accompany drunk people home and put them to bed to mitigate the risk of making fire and then falling asleep. Instead, the city council introduced a buckets and whistle brigade. Criminals saw the opportunity to blow the whistles and stealing the possessions of people who fled. • Be careful of romanticising agency and constantly be alert to relations of power. What can quickly happen is that a representative of a social movement can be held hostage to bribes and favour. This requires great vigilance.

Civil society engagement • There should have been more proactive monitoring of this process from the start, given the BNG’s stated policy intentions.

Court actions • There were a number of important creative court judgments in the first decade of democracy. There has been a gradual but noticeable shift towards a more executive‐minded approach in the second.

Integrating migrants and overcoming xenophobia group

Key discussion points

Context • There is a history of attacks on foreigners culminating in large scale attacks in May 2008. • Response strategies must be correctly anchored in the three distinct fault lines: social and cultural; economic; and ethnographic. These fault lines seem to be anchored in South Africa’s legacy of discrimination with respect to legislation, policy and administration. • There are a number of dominant perceptions that increase the risk of further outbreaks of violence: o Service delivery gaps and pressure on services. o Contestation over scarce resources (houses, jobs, etc.). o Contestation over perceived differences in entrepreneurial skills between local‐ owned businesses and foreign‐owned businesses. o Foreigners may be skilled, and they may be willing to do menial work for less money.

Comments on responses • Humanitarian networks were set up to respond to the needs of survivors of xenophobic attacks – shelter, food, health and communication with people who speak non‐local languages. There is a need to maintain a state of preparedness. • Many NGOs were slow to move from their traditional areas of activity to an effective response to xenophobic attacks. • In some cases refugees and migrants did not co‐operate or come forward because they felt that doing so could expose them to violence. • There were opportunistic attacks by some people who took advantage of the wave of violence to commit crimes and or settle old scores. • Many NGOs were not conscious of the xenophobic threat; they may be conscious and/ or unconscious instigators of violence.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

• The failure of institutions to respond adequately to isolated violations and abuses affecting foreigners (e.g. police ignoring reports of crimes reported by foreigners) created a climate of impunity which fuels violations and abuses. • A sense of collective guilt resulted in a sense of collective punishment (affecting locals and foreigners).

What more can be done to mainstream measures to protect noncitizens in South Africa? • Organise groups of foreigners to work with South African groups to emphasise a pan‐African agenda and create a sense of belonging and unity. • Take steps to tackle the psychological and ideological drivers of xenophobic feelings, e.g. perceptions that South Africans are different to other Africans and may be overwhelmed by invasion by foreigners. • Investigate the possibility of holding a national conference or series of national conferences on the threat of xenophobia to determine what to go, given that there is a real likelihood of recurrence. Ideally this process should to be driven or co‐ordinated by the SAHRC so that conference outputs feed directly into government policy with the obvious advantage of changing policy and potentially unlocking resources to deal with the real threat of xenophobia on an ongoing systematic an ongoing basis. • Involve all key stakeholders in the xenophobic conversation – perpetrators and victims – since it seems some perpetrators are oblivious to the consequences of what they have done. • Heed early warning signs. The events of May 2008 show that attacks start as isolated and unco‐ordinated and can easily get out of hand. • Encourage foreign groups to work in organised formations with identifiable leadership to address matters of concern and create avenues for formal communication with local authorities and local groups. • Anchor response strategies in human rights language and discourse. • Undertake civic education in grassroots communities and in schools to celebrate ethnic diversity, the African continent, its context and history. • Create some sense of supranational citizenry in SADC based on e.g. ubuntu. • Investigate the opportunities for regional programmes to inform migrants of their rights and address widespread prejudice in South Africa. • Promote collaboration between groups, specialised organisations and social movements like labour, churches etc. • Actively participate in and influence the direction of SADC integration.

DAY THREE

Session 8: SER in the SADC and African region – forging linkages

The Central Kalahari Game Reserve case, Botswana Alice Mogoe, Ditshwanelo – the Botswana Centre for Human Rights Ultimately this case is about a development paradigm which is not working for Botswana citizens. They are in a position of being recipients of benefits which flow from a development model crafted by others for them, without their mandate. The case involves the right to water; the right to land; the right to food; the right to health – effectively, the right to development. In 1961 the Central Kalahari Game Reserve (CKGR) was established in the then Botswana Protectorate. It was created for both wildlife and for the Basarwa/San who lived in the area. The aim was to protect them from the encroachment of other peoples. In 1997, the first relocation was

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009 conducted. People were moved from within the CKGR to settlements outside it. In 2002, the second relocation occurred. Having been involved in the second relocation, it was clear that it was an effective forced relocation. Basic and essential services were stopped. These included the provision of water, food rations, destitute allowances, and mobile health services. Residents were ‘encouraged’ to relocate but not forced. The choice they were given was to remain inside the CKGR without any services or relocate to the settlements outside the CKGR where the basic and essential services would be provided. At the time of the cessation of services, a civil society grouping, the Negotiating Team, which included both residents of the CKGR and supportive Botswana NGOs, was engaged in negotiations with one of the government departments (Department of Wildlife and National Parks – DWNP) concerning land use ideas of community use zones and recognition of traditional territories of the indigenous communities. Due to conflicting, unclear policies within the two government ministries dealing with the residents of the CKGR (Ministry of Local Government and Ministry which housed the DWNP), while the negotiations were underway with the DWNP for sustainable use of the flora and fauna inside the reserve by the residents, the Ministry of Local Government announced that it would stop basic and essential services inside the CKGR. Services were stopped on 31 January 2002. A government‐owned borehole was sealed and its engine removed by the government, in one of the settlements inside the reserve. In February 2002, the Negotiating Team decided to take the matter to court as an urgent matter with the aim of reversing the decision. The main objective was to force the hand of the government and return to the negotiating process. The case dealt with: • Whether the termination of basic and essential services (health, food, water, etc) was unlawful and unconstitutional and whether the government was obliged to restore the services. The Court ruled that the termination of services was neither unlawful nor unconstitutional. It also decided that the government was not obliged to restore basic and essential services. They agreed with the state that services had not been stopped, but had merely been relocated and remained accessible to the residents. • Whether, before 2002, the residents were in possession of the land which they lawfully occupied, and whether they were unlawfully or wrongly deprived of the land without their consent. The Court ruled that the residents had lawfully occupied the land and were unlawfully deprived of it without their consent. • Whether refusal by the government to issue special game licences (SGL) for hunting within the reserve was unlawful and unconstitutional. The Court ruled that the refusal by the government to issue SGL to the residents was unlawful and unconstitutional. The Court ruled that it was unlawful and unconstitutional to deny residents entry into the CKGR. The government has since not issued any SGL because the national legislation prohibits hunting inside the reserve. Prior to 2002, the residents had been permitted to hunt inside the reserve, in spite of the existence of such law. In effect, this was a hollow victory because while those who had been part of the case could return to the reserve, they could only do so without the basic and essential services upon which they had grown to depend. The aim of the court action of bringing the government back to the negotiating table had not been fully achieved. We have returned to working directly on the lobbying/negotiating strategy.

The courts As has been noted by researchers, court enforcement of constitutionally‐protected SER can often lead to the Court being constrained by the separation of powers doctrine. In the case of the CKGR, even though there was room for the Court to engage with the matters through adjudication, it was unable to order that the state act in accordance with specifically identified and stated duties which exist in legislation. One of the judges did, however, attempt to couch what he argued were duties in terms of government policies towards the poor, as rights which the state ought to protect. He also

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009 drew upon the constitutionally protected ‘right to life’ as the basis of the state’s duty. Without water, there can be no life.

Lobbying for recognition of socioeconomic rights Ditshwanelo communicated with the Minister responsible for DWNP to ask whether the government did not respect the basic right to water which everyone in Botswana has and which ought to protected. This was in response to the refusal of DWNP officials to allow Basarwa/San who had decided not to relocate, to transport their own water into the reserve for their own needs. The Minister did not engage us on the question, but proceeded to allow the family to bring in their own water. This was recognition of the right to water, albeit for a specific community.

Negotiating for recognition of socioeconomic rights The Botswana NGOs, working with the residents (former and current) have formed the Residents’ Committee and are in the process of preparing themselves to engage in a meaningful negotiation process with the government. Issues of concern to the residents include: • access to water; • right to hunting and gathering (the apparent continued suspension of the issuance of hunting licences had led to several poaching cases being brought before the courts); • employment and income opportunities using the environment; • respect of their ancestral and burial sites within the reserve.

Working towards a developmentparadigm shift It has been clear over the years that legal victories relating to SER which are not constitutionally or statutorily defined rely greatly upon political will for their realisation. The difficulties we faced in this case included the vulnerability of people to outside influences, e.g. financial incentives, and the approach of the international organisation Survival International which is primarily about advocacy, naming and shaming, not development. Survival said it had a blueprint for how to engage, based on experience in Australia and America. Our intention was to bring government back to the negotiating table. Survival was engaging on an idealised notion of the Basarwa as hunter gatherers. Basarwa children go to school and get water and food rations. They have one foot in the modern world, and another in the life of the previous generation. The court victory was hollow – it found that, while people had been unlawfully and unconstitutionally dispossessed, and the suspension of their hunting licences unlawful, government action to discontinue services was not unlawful because the authorities had simply relocated the resources to two settlements outside the reserve. The effect of our political history has a huge impact on the present. Independence was handed to us on a plate, so it is difficult to mobilise in Botswana. Working in the field of human rights is frustrating, even in civil society. There is not enough reflection on why people are doing what they are doing and where they are going. Elections are coming up in October, and the debate is about personalities and power, more than about political differences between the parties.

Land reform in Mozambique Lourenco Duvane, ORAM, Mozambique ORAM8 is a national NGO working on land tenure to benefit the rural peasantry. Civil society, NGOs, church leaders and the media was united behind the new Land Law when it was passed in 1997. The law aims to provide secure land for everyone, promote investment and promote agriculture.

8 Organizaçao Rural de Ajuda Mutua [Rural Organisation for Mutual Help].

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

Mozambique is an agricultural country. Securing land is a human rights issue. Everyone deserves a piece of land to sustain his or her family. Providing land is not enough, also need equipment, tools and knowledge so that people can make use of that land. If the land is not used, the government can take it away. The law provides for gender quality – men and women have equal rights in the land. Before this law, the cultural practice was that a widow was not allowed to own land in her name; the land had to be registered in the name of her husband or brother. Officials no longer ask a woman who wants to register land ‘where is your husband?’ The law also provides that land is managed by the communities that live on it. Before land can be granted to outsiders (e.g. private investors), there must be a consultation with the community. And anyone who has been working land for ten years has the right to continue to use it without any certificate being required. Civil society enjoyed the victory of a progressive land law, but lost sight of how things were being implemented. Now we find that investors are bringing conflict. People are being chased away from their land; there are conflicts on the beaches; there is no consultation with communities as the law requires; government officials are not fulfilling their duties; and some officials are corrupt. Community consultations are supposed to take place over a minimum of 15–20 days but we are finding a single meeting is held without notice and described as ‘consultation’. The land affairs department, local government and the community leader are supposed to give a community 15–20 days’ notice that a consultation will be held in order to enable people to have discussions, seek advice, etc. Then the government, community and investor are supposed to attend a meeting at which the community decides whether the proposal will be accepted. We are finding that some community leaders are accepting gifts to sign agreements without consultation. The community in question does not know what benefits the private investor is supposed to bring. We are engaging in civic education to bring awareness of this issue. People are writing letters to the press saying they did not know about a community consultation in their areas and calling for the process to be done again. We could bring this matter to the courts, but have not taken any legal action yet. All the land in Mozambique is held by the state, but some (including the International Monetary Fund and the World Bank) are saying land should be privatised and nobody in civil society is saying no. What should we do? We need to resurrect NGOs because things are not going that well. About 10,000 Chinese farmers are about to be settled in Mozambique, but nobody knows where. Government is saying it is not true, but there is information that government has signed a contract with the Chinese government, just as Madagascar, Ghana and Cameroon have done. We have started a movement at the district level to organise and facilitate the engagement of peasants with district government. It is no longer enough to discuss issues at national level. The people at the grassroots that we in NGOs and academia are working for must participate in what we are doing.

Comment • The emerging land lesson in Africa is that, even where progressive laws exist, there is insufficient attention to implementation and the enforcement of rights. We have fallen victim to this in South Africa. There is a naivety about the extent to which law and policy can bring about change. There is a need for pressure, motoring and assistance to government. Litigation plays a role in defining rights, but the key issue is a lack of institutional capacity.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

The situation in Uganda Christopher Mbazira, Community Law Centre, Uganda We may engage for human rights, but unless we engage economic planning mechanisms no implementation can take place. Uganda is one of the poorest countries in the world, with a very low life expectancy and income level. There have been a number of civil conflicts and military regimes. Since 1987 there has relative calm, with the exception of the northern region where there has been a civil war prosecuted by the Lord’s Resistance Army for the past 20 years. In the late 1980s and early 1990s, Uganda was one of the countries that embraced the World Bank’s structural adjustment programme. It privatised national enterprises; retrenched large numbers of public servants (in a country where the public service is the biggest employer); abolished foreign exchange restrictions; and opened up the economy to foreign investment. As a result, Uganda was put on a pedestal as being a model of African development with a new breed of African leader. By the late 1990s, structural adjustment had failed. People had to pay for medical treatment in public hospitals, they had to pay school fees, poverty had increased, and public service retrenchments meant widespread unemployment. Even though Uganda is judged to be an example of best practice with regard to dealing with the HIV/Aids pandemic, much needs to be done. Between the mid‐1980s and early 1990s, just about every family had lost a family member to the disease. The Human Development Index puts our country at no. 154 of a total of 177 countries. Although a poverty eradication plan has been in place in the Ministry of Economic Planning since 1997, there have been no tangible results. This plan is due to be replaced with a five‐year national development plan. Before 1970 land had been privately held, and there were many squatters. In1998 a new land law created some security of tenure to people occupying land. Bona fide occupants with more than 12 years’ occupancy as of 1998 could not be evicted by land title holder without compensation. People living on land with the consent of land owner could also not be evicted without compensation. But there have been evictions without the necessary court orders, some of these violent, some carried out at night. Government proposed amendments to the Land Act to enable bona fide occupiers to be evicted, but the Bill was withdrawn from Parliament after heavy opposition. The Land Act puts in place an elaborate system of customary certificates of title, but no mechanisms have not been put in place and no certificates have been issued. South Africa has justiciable SER; Uganda has human rights as objectives and directive principles for state action. Uganda has ratified almost all international and African human rights instruments. But government has failed to take the national Human Rights Commission guide for state planning into account in its plans. Economic planning tends to focus on the economy rather than on social development. Insufficient attention has been paid to human rights and community development. Government does not want to build mechanisms that will ensure accountability. Our experience shows that, as long as we do not follow a human rights approach, there is a problem. Uganda is still one of the least developed countries in the world.

Support to human rights commissions in Africa Menzi Hlongwa, Centre for the Study of Aids, University of Port Elizabeth The failure of authorities in African countries to make specific provision for those in desperate need means there is no reasonable likelihood of ensuring responses to ensure progressive realisation of SER. There is a need for research across countries, and an exchange of experiences. The challenges for regional public goods will inform how we do things next time. People move from one country to another, surpassing the ability, capacity and resources of many governments to provide. There is a need for strategic support for human rights in Africa. The Centre for the Study of Aids has responded to requests for support from the human rights commissions of Zambia and Rwanda. Our research

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009 indicated that Zambians did not think their commission was doing much for them, and we provided feedback to assist commissioners to improve what they were doing. We have staff placements in the Zambian and Rwandans commissions to assist them to improve their services.

The International Center for Transitional Justice’s activities in the region Piers Pigou, International Center for Transitional Justice Southern African Regional Assessment Project Transitional justice generally looks at a range of potential interventions that might be employed in contexts of countries transitioning from authoritarian and repressive conditions to more democratic dispensations. In these contexts, there is an implicit recognition that normative frameworks for justice and accountability have limited application and therefore a range of options might be explored. These include: truth recovery; prosecution and accountability; institutional transformation; reparations; and memorialisation. The socio‐economic focus of these processes is very limited (e.g. the South African Truth and Reconciliation Commission and the Kenyan Truth Commission) and there is a tendency to not engage with these issues. However, it has become increasingly clear that socio‐economic concerns and their primacy in the lives and aspirations of most communities affected by repression, organised violence and torture are primary concerns in Southern Africa. The Southern African Regional Assessment project aims to review what has been done, conditions on the ground, and opportunities and attitudes towards these processes. South Africa, Zimbabwe, Angola, Mozambique and Namibia have all experienced massive violations of human rights in the recent past. Apart from Zimbabwe, where a political crisis continues, all of these states have further seen the end of major conflicts within the last two decades. The need to come to terms with past violations, however, remains. Only in South Africa have formal transitional justice mechanisms played a visible role, and even there, those mechanisms have left many issues unaddressed. In all five cases, there are some commonalities: the devastation of conflict on livelihood; widespread impunity for violations; weak criminal justice processes; an inherent lack of transparency as a key aspect of the political culture; transition as a betrayal of ideals; extreme socio‐economic inequality and high rates of gender based violence. In South Africa, for example, the extreme economic inequality between rich and poor reflects the failure to address the economic crimes of apartheid and the absence of adequate reparations. In Angola, meanwhile, transitional justice mechanisms such as truth‐seeking are often relegated to the second tier of priorities, and ‘reconciliation as reconstruction’ has become a national mantra. Throughout the reports on these countries, there is overwhelming concern to link justice and development. Other common threads run through the diverse cases. For example, several reports note the existence of and possible advantages of informal and traditional transitional justice mechanisms; evaluate the necessity and feasibility of anti‐corruption measures; identify possible reforms of veterans’ pension schemes; identify gender‐based crimes, inequalities and poor access to justice; consider community reparations schemes; propose healing programmes and transitional justice education; suggest research on victims’ views; and call for the co‐ordination of civil society initiatives. Yet the differences between the cases are as compelling as their similarities. The political crisis in Zimbabwe makes any preparation for transitional justice mechanisms uncertain, while the end of devastating conflicts in Angola and Mozambique means that discussions of transitional justice take place in the context of extreme war‐weariness, and political disapproval. In Namibia the continued dominance of SWAPO [South West African People’s Organisation], the liberation movement and current ruling party, has prevented official investigation of the past.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

A principal recommendation of every assessment is therefore a need for more research and deliberation on a number of issues including what is meant by transitional justice in various settings; when does a country decide to start telling the truth; how does a country revisit its past; how do we know what transitional justice mechanisms work and when; at what point do victims demand justice and what are the indicators of a successful transitional justice process? In addition, partners observed the need to look beyond human rights violations and the victim/survivor paradigm and to explore how contemporary issues, in particular corruption and poverty, as well as socio‐economic inequalities are linked to conflicts of the past.

The South African government and international human rights instruments Pitso Montwedi, Chief Director: Human Rights and Humanitarian Affairs, Department of International Relations and Cooperation (DIRCO) The government is committed to respect for, promotion, protection and fulfilment of human rights. The Department of Justice and Constitutional Development is accountable for respect for human rights and fundamental freedoms within South Africa, including the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act, the Promotion of Access to Information Act, and the Promotion of Administrative Justice Act. The Constitutional Court has given momentum to the notion of the justiciability of economic, social and cultural rights. Non‐discrimination is a key principle of human rights law. Our foreign policy is predicated on the externalisation of domestic policy, in our region, continent and the rest of the world. In 1995 the government signed the core instruments of international human rights covenants. However, we have not ratified International Covenant for Economic, Social and Cultural Rights (ICESCR). Cabinet decided the Department of Labour would be the implementing agent for ICESCR. However, because this Department does not have to power to police an instrument which cuts across all government departments, government could not become a state party to ICESCR. Our Department is hoping the nascent National Planning Commission will take notice of this issue. There is much higher political will in the countries of the Africa to make a positive change in the lives of the people. However, the 53 countries on the continent are at very different levels of maturity with respect to human rights, good governance and accountability. We are working on intergovernmental structures that address human rights in Africa. Governments do not currently come together to discuss the promotion and protection of human rights through the African Commission on Human and People’s Rights.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

Closing session

Workshop review Rick de Satgé

Content overview

At the centre of what we have been talking has been a debate about the distinction between human rights and citizen rights. We have tended to assume we are talking about citizen rights which, in the regional context, can be exclusionary. Human rights must include the rights of migrants and refugees. We have spent time learning from practice about advancing SER. But it is not possible to advance SER without deepening democracy and reducing poverty and inequality. This requires responsible and accountable governance and a vibrant civil society. Vibrant civil society embraces: • What ‘community’ is – is it defined by locality or is it a community of interest? • The challenges of participation – particularly at scale. • A range of organisational scales and forms – local and national, and social movements. • NGOs and academic institutions with the capability to lobby, advocate, shape policy and litigate. • How to strategically align the activities and functions of the actors in the country and the region. • Shared learning and communicating.

Responsive and accountable governance embraces: • The legal framework • Rights and socio‐economic policy. • The implementation capacity of key institutional actors in the state – local provincial and national. • The strength and credibility of regional institutions. There is a continuum of engagement between civil society and government which includes dialogue, negotiation, civil disobedience and violent protest. We should ensure that engagement is positive through a deepening of democracy that allows the spheres to connect with one another. There is currently a culture of impunity with respect to violence, and it narrows democratic space. If the state responds to violence, it means violent behaviour is rewarded.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

The final point is how to measure the impact of various SER interventions. Quantitative measurements are crude and not particularly useful, but there is resistance to qualitative measurement as credible evidence.

Participant feedback

Key lessons • We need to improve co‐ordination and co‐operation in civil society in South Africa and the region at large. • Do not research the research! • There are benefits of stakeholders engaging together on SER, including the private sector and the private sphere. • All interventions should be informed by children’s rights. • Constant monitoring and evaluation is necessary. • We should focus on tenure security. • There is a great need for citizen awareness of how to claim SER. • Co‐ordination of civil society is very important – this will make it more pragmatic and vibrant. We should speak with one voice. • Legal interventions have their place, but they also have limitations. We should start with negotiation and see how far that takes us. • The absence of the SAHRC is stunning given its constitutional mandate. We should hand the results of some of our work to the SAHRC to find a way forward. • There is a need to forge a greater understanding of the practical implications of the links between rights. People talk about indivisibility of rights but what does this mean in practice? We need more illustrative approaches. • Non‐state actors have human rights obligations in terms of international instruments. It should be the role of the state to police compliance on the part of non‐state actors. • Academics, NGOs and lawyers must be ‘on tap, not on top’. • The struggle for SER is felt by those who suffer; they are the ones who should lead us.

Practical proposals • A lot of informal networking activity has taken place during this workshop and linkages have been formed. Keep this momentum going within civil society and within our individual organisations. • Circulate the attendance register to facilitate the ability of participants to circulate useful documentation to one another. • Organise a regional annual learning event on security of tenure with the participation of migrants, practitioners, activists, academics, CBOs and social movements. • Provide support for practitioners to gain fieldwork experience. • Regionalise our analysis, look at the conduct of non‐state actors, investigate bilateral treaties, track trends, and monitor violations. • Support social movements with capacity and resources to enable them to take their place as key roleplayers in development. Provide opportunities for social movements to connect with and learn from one another, and connect with people engaged in local struggles. • Provide support for dialoguing and networking opportunities led by those who suffer. • Practice politically active listening – listen to hear what people say and want, do not impose your will.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

Other comments • We did not talk about the economic context – the market economy is the key context in which SER are discussed.9 • The workshop was invaluable. • There was much informal mapping and co‐ordination to inform future research. • The workshop broke down some of the barriers by bringing together lawyers, activists, academics and social movements around SER. • This was a good opportunity to share experiences. • Many other government departments should have been present.

Closing Ingrid Skjolaas, Royal Norwegian Embassy There was a good level of participation in the conference. Thank you to all the organisations who were not part of the NCHR programme but who came to add their voices; and to the representatives of the South African government. South Africa is a pioneer internationally in the field of SER, partly because of its unique legal framework, and partly because of what happens within that framework. We look forward to continuing and renewing our relations around human rights with those who participated in this event. Ben Cousins This workshop was the culmination of a more than decade‐long NCHR programme. Thank you to NCHR, the Royal Norwegian Embassy and the government of Norway for supporting this programme in a way that was ‘on tap but not on top’. Congratulations for working as partners rather than as bosses. It has been hugely important for building PLAAS as an institution and for building a relationship between Noragric and PLAAS. Thanks to Tor Edland and Malcolm Langford of NCHR, the organisers and staff at this conference, to the presenters, to the international and southern African participants, and to representatives of social movements. We hope to meet for more cross‐ programme dialogue and learning.

9 A scheduled input on economic policy and budgetary allocations had to be cancelled because presenter Imraan Valodia was ill.

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

Appendix: Workshop participants

Mark Abrahams Centre for Open Learning, University of Cape Town Rebecca Amollo Community Law Centre, University of the Western Cape Geoff Budlender Richard Calland Democratic Governance & Rights Unit, University of Cape Town Lilian Chenwi Community Law Centre, University of the Western Cape Hlako Jacob Choma Ismail Mahomed Centre for Human and Peoples’ Rights, University of Venda Aninka Claassens Legal Resources Centre (LRC) Ben Cousins Institute for Poverty, Land and Agrarian Studies, University of the Western Cape (PLAAS) Rick de Satgé Phuhlisani Solutions Kathleen Dey Rape Crisis Sipho Dlamini Church Land Project Lisa Dragga Legal Resources Centre (LRC) Annelie du Plessis Lawyers For Human Rights (LHR) Jean du Plessis Centre on Housing Rights and Evictions (COHRE) Jackie Dugard Centre for Applied Legal Studies (CALS), University of the Witwatersrand Lourenco Duvane Organizaçao Rural de Ajuda Mutua (ORAM), [Rural Organisation for Mutual Help], Mozambique Tor Edland Norwegian Centre for Human Rights (NCHR), University of Oslo Lindela Figlan Church Land Project Elvis Fokala Community Law Centre/ Human Rights Institute of South Africa (HURISA Cornelius Hagenmeier Community Law Centre, University of the Western Cape Ruth Hall PLAAS Betty Hattingh Legal Aid Clinic, University of Stellenbosch Stephen Heyns Workshop rapporteur Menzi Hlongwa Centre for the Study of AIDS, University of Port Elizabeth Steve Kahanowitz LRC Andiswa Kolanisi Church Land Project Lwazi Kubukeli LRC Malcolm Langford NCHR Puleng Letuka Ismail Mahomed Centre for Human and Peoples’ Rights, University of Venda Sandy Liebenberg Faculty of Law, Stellenbosch University Janet Love LRC Tshepo Madlingozi Centre for Human Rights, University of Port Elizabeth Molebogeng Matlhare Department of International Relations and Cooperation Veronica Matshobeni May‐Elin Stener Royal Norwegian Embassy Christopher Mbazira Community Law Centre, University of the Western Cape Anneke Meerkotter Tshwaranang Legal Advocacy Centre (TLAC) Sindiso Mnisi Rural Women’s Action Research project (RWAR) Alice Mogwe Ditshwanelo, the Botswana Centre for Human Rights Pitso Montwedi Department of International Relations and Cooperation, South Africa Maureen Motepe National Department of Social Department, South Africa Khulekani Moyo NCHR Helgard Muller Department of Water Affairs, South Africa Thulani Ndlazi Church Land Project Christina Nomdo Resources Aimed at Preventing Child Abuse and Neglect (RAPCAN) Babalwa Petelo Rape Crisis Graham Philpot Church Land Project (CLP) Piers Pigou International Center for Transitional Justice (ICTJ) Tara Polzer Forced Migration Studies Programme, University of the Witwatersrand Mzonke Poni Church Land Project Annette Reed LRC Steve Robins Department of Sociology and Social Anthropology, University of Stellenbosch Helen Scanlon International Center for Transitional Justice (ICTJ) Shirhami Shirinda PLAAS Shereza Sibanda Inner City Resource Centre Abongile Sipondo Democratic Governance and Rights Unit (DGRU), University of Cape Town Espen Sjaastad Department of International Environment and Development Studies, Norwegian University of Life Sciences (Noragric). Ingrid Skjolaas Royal Norwegian Embassy, Pretoria Henk Smith LRC Tara Smith NCHR Ursula Smith Phuhlisani Solutions Johanna Thulare CALS Alison Tilley Open Democracy Advice Centre Kate Tissington CALS Arnold Tsunga Africa Regional Programme of the International Commission of Jurists Frans Viljoen Centre for Human Rights, University of Pretoria Tersia Warries PLAAS

Key points from the NCHR ‘Securing socio‐economic rights in southern Africa’ conference, 31 Aug–2 Sep 2009

Samantha Waterhouse RAPCAN Wilmien Wicomb LRC Boyce Williams Phuhlisani Solutions Jennifer Williams Women’s Legal Centre Poul Wisborg Noragric Rachel Wynberg Environmental Evaluation Unit, University of Cape Town Musa Zakwe Association for Rural Advancement (AFRA) Sbu Zikode Abahlali baseMjondolo