Monitoring the fulfilment of socio-economic rights in South Africa National standards and indicators in fulfilling economic, social and cultural rights: Sources, strategies and challenges Monitoring the fulfilment of socio-economic rights in South Africa By: Lilian Chenwi Disampaikan dalam Seminar dan Lokakarya Nasional “Menuju Perlindungan dan Pemantauan yang Efektif Hak-hak Ekonomi, Sosial dan Budaya di Indonesia,” diselenggarakan oleh PUSHAM UII, bekerjasama dengan Noewegian Centre for Human Rights (NCHR) Universitas Oslo Norwegia. 16-18 April 2007.

Introduction Importance of monitoring human rights To avoid rights ending up as mere paper rights Sources of standards and indicators for monitoring SERs Statistical data Qualitative standards emanating from constitutional provisions, laws, policies and court judgments

Reasonableness review standard Derived from the state’s constitutional duty. Take reasonable legislative & other measures within available resources to achieve the progressive realisation of SERs In Grootboom, the Court set out indicators to measure what constitutes a reasonable measure. The question to be addressed by a court – is whether the measures adopted are reasonable Not whether other more desirable or favourable measures could have been adopted or whether public money could have been well spent.

The basic standards Be comprehensive, coherent & coordinated Not exhaustive – a changing one – is context sensitive & applied on a case-by-case basis Be comprehensive, coherent & coordinated Grootboom – measures not sufficiently comprehensive to be reasonable Set out responsibilities of the different spheres of government Be reasonably conceived and reasonably implemented Obligations of conduct & obligations of result Kutumela – social grant measure that existed on paper & not in practice

Basic standards cont. Be balanced and flexible Capable of responding to short-, medium- & long-term needs TAC – inflexible programme Make available financial and human resources Kutumela & TAC raise this requirement Be transparent Standard added in the TAC case

Criticisms - reasonableness standard Fails to recognise direct individual positive rights Creates difficulties for the enforcement of SERS Burden of proof on applicants

Advantages of the standard It addresses separation of powers concerns State is given room to formulate appropriate policies It avoids closure & creates the on-going possibility of challenging socio-economic deprivations in the light of changing contexts Good benchmark against which the state’s performance can be measured

SAHRC – monitoring process Mandate – s184 of the Constitution Each year, the Human Rights Commission must require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of rights concerning housing, health care, food, water, social security, education and the environment. Requests information on fulfilment of SERs Compiles a report – this is not a constitutional obligation

SAHRC cont. Approach – Establishing a foundation for its monitoring role: Workshop – guiding principles & plan of action Survey on public perceptions & publi hearings - development of sources of information Establishment of ESRs unit Progressive realisation as opposed to violations approach Strategies for the collection and verification of information Questionnaires – ‘protocols’ Research Fieldwork Consultation workshops with affected communities

SAHRC cont. Indicators and benchmarks Quantitative & qualitative - Statistics - Benchmarks (targets) set by respective government departments - reasonableness standard - Millennium Development Goals (MDGs) - specific indicators derived from general comments, courts’ interpretations of SERs, laws and policies

The major headings of the protocols New policies, strategies & legislation Progress in implementing key programmes, sub-programmes and projects Communication strategies – relating to the dissemination of information to the public about the content of the right and how to aces the right Assessment of actual outcomes in relation to constitutional obligations (s7(2)) – how adopted measures met the obligations to respect, protect, promote and fulfil

Protocol headings cont. Key challenges faced in aiming to achieve progressive realisation Indicators used for assessing delivery performance Monitoring and evaluation (M&E) Mechanisms or systems used to monitor and evaluate progressive realisation of the right. Key findings of any M&E exercises or studies conducted. Recommendations for policy o strategy or legislative changes that could b necessary for the subsequent year; and reasons why there’s need for this change.

Reporting elements for each key programme or project Political and legal mandate, including participatory processes Objectives Intended beneficiaries and vulnerable groups Strategic planning targets set Budget allocation Targets achieved Implementation difficulties Actual expenditure Audited expenditure – over/under-exp.

Key challenges to monitoring Lack of a precedent at the domestic level Indicators of progress use of statistics problematic; limited reliance on MDGs Limited content of protocols limited reliance on reasonableness standard; no follow up questions or questions on implementation of court orders Low protocol response rates from organs of state / delays Inaccessibility of protocol responses to the public Limited or no collaboration between the Commission and NGOs